Professor: Atty. Carla Santamaria-Seña Transcribers

Professor: Atty. Carla Santamaria-Seña

Transcribers:

Marc Roby de Chavez (MARX) Mon Cristhoper Pasia (MON) Ruth Anne Datay (RUTH) Socrates Benjie Marbil (SOC) April Gerero (APRIL)

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Patrimony- the totality of the property, rights and obligation of a person who is still alive.

WILLS1 Article 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.

What happens in the patrimony if this person dies? It may or may not be diminish. But in all likely, it would diminish, why? What is the effect of death upon patrimony? Because some of the rights and obligations may be extinguished by death. We look at death as some kind of a filter, so when death takes place, there will be transmission, but not all rights and obligations will survive death, some of them will be extinguished.

What is succession? Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law The phrase “to the extent of the value of the inheritance” to which does that apply? Obligations

After death had intervene, how do we now refer to the property rights and obligations which have survive death? With respect to the heirs, it shall be known as inheritance; With respect to the other persons of the rest of the world, it shall be known as estate.

Why obligations only? The rationale of the phrase? For protection of the heirs What is estate? The totality of all the properties, rights and obligations left behind the deceased.

How do we classify the estate? Is this a person or is this just the totality of the properties, rights and obligations? It is both, because essentially it is the inheritance (the properties, rights and obligations which have survived death) but for a limited purpose afforded the estate some kind of a legal personality, it is considered to be juridical person.

What is patrimony? An inherited estate; property inherited from the paternal side What is liquidate? To settle a debt or an obligation in the form of money

Why does the law afford the estate this legal personality? It is to enable to settle the pending affairs of the decedent, pending affairs may include the enforcement of right belonging to the decedent or settling obligations owed by the decedent to third persons.

The heirs continue the personality of the deceased Must there always be someone dying before succession takes place? No, Succession is not confined to that which takes place upon the death of a person.

Depersonalization? It is the patrimony which was eventually liable or answerable for the obligations of the person who contracted the obligation. If we invoked relativity of contracts, we are limited to heirs and the assigns. heirs and the assigns will only be liable to the extent of they receive, there will be no personal liability vesting upon them.

Succession can be understood in 2 senses: General Sense: the transmission of rights and properties from one person to another. Technical Sense: denotes the transfer of title to property under the laws of descent and distribution, taking place as it does, only on the death of a person.

Depersonalization was related to Obligations and contracts. What is depersonalization of obligation? It means that in the end every obligations will have to be satisfied against the property of the debtor, every obligation. Note, if you have an obligation, what is the remedy of the creditor against the debtor if it does not want to perform it voluntarily?

WILLS2 A person during his lifetime would acquire rights, properties and obligations, the totality of his properties would be his PATRIMONY

1

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH To bring an action for specific performance. If the debtor does not want to perform it personally and it was performed by other persons then the liability will be converted to reimbursing the creditor for the expenses of letting another person to perform that which the debtor should have done. And the debtor should pay? Reimbursement from the debtor’s property. If the obligation cannot be performed by the debtor himself the remedy is damages, which again will be satisfy to the debtor’s property. In that preferably, but if the debtor does not have cash, the court issues writ or levy to attach the debtor’s properties, the properties will be sold and the proceeds will be used to satisfy the obligation. All of this showing that every obligation is satisfied against your property. Depersonalization, patrimony to patrimony, the debtor does not want to perform, it cannot be perform, it can no longer be perform, the creditor will ask for damages and such damages will be satisfied against the debtor’s property. That principle (depersonalization) support the existence of the estate. In other words, the debtor himself does not have to be alive to be able to satisfy an outstanding obligation, the debtor becomes a dispensable party. Even the debtor is dead, the creditors has a recourse against whatever property the debtor leave behind thru the person created by law, the estate as a legal personality.

What is the basis of saying that the spouse has the primary right? The law on obligation to give support • Spouses • Legitimate ascendants and descendants • Parents and their legitimate and illegitimate children of the latter • Parents and their illegitimate and illegitimate children of the latter • Legitimate brothers and sisters, whether full or half-blood How will we determine if a property, right or obligation will survive death? When we say that rights are personal that will not be extinguished by death, what do we mean by personal right? 2 senses that which personal right is understood • Personal right in its general sense – inherent to the person • Personal right in its contractual sense - right which survives death Personal right vs real right • Personal right- enforceable against a specific of definite person • Real right- enforceable against the whole world A personal right may or may not be extinguished by death because our basis that a right is so personal that it is extinguished by death would be the nature of that right as inhering to that person. So it is possible that we have a personal right in its contractual sense which will survive death.

Why do we need that concept of patrimony to patrimony? To protect the creditor and to create confidence in transactions. Absence of such concept there will be no or limited transactions. No one will have the confidence to create transactions.

E.g. The right of the seller to collect from the buyer, it passes to the estate. Such right is a personal in a contractual sense because he can only enforce such right as against to the other party to the contract to sell who is the buyer. He can’t enforce to any other person, in that sense it is personal. But is it personal in its generic sense? is it something which is inhered to the person of the decedent? NO, it is not personal in nature in its general sense. So rights which will be extinguished by death are that rights which are inherent to the decedent. Personal right in its contractual sense, they are not necessarily extinguished by death.

Succession vs Inheritance Succession is the mode by which the inheritance is transmitted while inheritance is the properties, rights and properties which survive death. How do we treat the corpse of the decedent would that be property? The corpse is not a property to be inherited Who has a better right the spouse or the mother of the decedent? Spouse, because the corpse is a not a property to be inherited

e.g. of personal right contractually and personal right by nature Right of consortium in the marriage

What right is afforded or acknowledge to the spouse? The spouse has a limited right on how, where, when the will be buried

Are patrimonial rights be extinguished by death? Generally transmissible 2

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What are patrimonial rights? Right which are related to the property

after death? The SC pointed put that this right to require the qualification can be waived by the creditor, should the guarantor lose all the qualification after the guaranty is constituted the creditor is given the right to ask for a replacement if he wants to. It is not also express in the stipulation of parties, the contract is silent about it The nature of the obligation, it is not purely personal because if we treat the contract of guaranty in its barest form it is just an obligation to pay a sum of money, to pay when the debtor cannot pay.

e.g. of a patrimonial right which survives death Right of ownership which passes on from the decedent to his heirs Exceptions, when will patrimonial rights be extinguished by death? • By stipulation of parties • By provision of law

ALVAREZ VS IAC The heirs contend that the liability arising from the sale made by their father to Siason should be the sole liability of deceased/of his estate, after his death. The Supreme Court held that the heir’s can’t escape the legal consequences of their father’s transactions, which gave rise to the claim for damages by the Yaneses. That said heirs didn’t inherit the property involved is of no moment because, by legal fiction, the monetary equivalent thereof devolved into the mass of their father’s hereditary estate. And the hereditary assets are always liable in their totality for the payment of the debts of the estate, the heirs however, are liable only to the extent of the value of the inheritance

e.g. of patrimonial right extinguished by death because of a provision of law Right of usufruct Why is it extinguished by death? Because the law so provides, it is extinguished upon the death of either parties Parties in a contract of Usufruct Naked owner and Usufructuary Are the rights of obligations transmissible? Yes What are the rights of obligation? The rights of the creditor and the corresponding obligation of the debtor.

WILLS3 SANTOS VS. LUMBAO Facts: Heir- children of Maria who are the original owner of the land and then pending the settlement of Maria’s estate. Rita, one of the co-heirs decided to enter into an agreement with the spouses lumbao pertaining to the inchoate right in maria’s estate. Now apparently the document “bilihan ng lupa” was witness by two of Rita’s own children. However after Rita’s death they no longer wanted to honor the document or the sale; and what were they saying? Their saying that they were not bound of the document or sale entered into by Rita, they did not want to give up the property anymore contracted by Rita. Ruling: The heirs are bound to the actions by their predecessor and must honor the contract because Property, rights and obligations are passed on to the heirs, also because the transaction affects the property. The

Obligations of the debtor are transmissible except those which are: • Depending on the nature of the obligation (purely personal) • intransmissible by express provision of law • stipulation of parties. ESTATE OF HEMADY VS LUZON SURETY Relativity of contracts- binds only the parties, heirs and assigns. Contracts are generally transmissible, it is binding in the heirs. But the law provides exceptions to general transmissibility • Express stipulation of the parties • Express provision of law • Depending on the nature of the obligation The Supreme Court applied this conditions, is the obligation of a guarantor one which is extinguished upon death by express provision of law? The SC said that there is nothing in the law which says that it will be extinguished by death. But what about the argument that death makes a person loose his integrity when it is a requirement for a guarantor, how will that affect the existence of the contract 3

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH inheritance will be subject to whatever transaction affects such property. In this case the transaction is the deed of sale.

Here again caught the heir of Beatrice to go to court and question the grant and this time around what did the S.C say? The S.C. say that it did not constitute a deed of assignment. Why not? By the very wording of the Sinumpaang salaysay. What does it mean? It means that the transfer be effective, when? At the time of her death. So, what could be a better explanation or justification that it was a transfer mortis causa, strictly pwedeng assignment yan coz you can always have an assignment during, what? During the lifetime of the transferor. And what more when did margarita died? She died in 1971; and when did the NHA grant the right to Francisca? It was in 1986. That is why the S.C said to admonish the NHA, you should have known that at the time you granted the right to francisca the other heir of margarita had already a vested right on the interest of margarita under the contract to sell, because they gave the grant after her death and succession to her estate has already open, you could have not ignore that, you should have not granted the right to margarita.

NHA VS ALMEIDA Facts: Margarita had an option to buy the property because of the contract to sell that she entered into with the NHA. During her lifetime Margarita executed `a document, which was denominated as sinumpaang salaysay, it was witnessed by two people in that sinumpaang salaysay. In that sinumpaang salaysay “kapag ako’y pumanaw n at naayos n ang aking mga karapatan ay kilalanin ang kanyang anak na si Francisca” They (heirs of Beatrice) also have a share to the inheritance, because their mother predeceased their grandmother so they become also the co-heirs of margarita. It is not therefore correct for francisca to declare to the court that she was the only heir left by margarita--- this is the purpose of self adjudication. Remember in the beginning that was the clash. That was the theory of francisca—“I am the sole heir therefore the right goes to me”--- pero magkakaroon n sila ng problema dahil hinahabol din ng ibang coheirs. So what does she do? Using the same document she devise a new theory, she was no longer claiming as an heir. This time around she was claiming as an assignee. The sinumpaang salaysay is actually an assignment of right made by margarita in my favor”. That was now the new theory. And it was a brilliant theory. Why? Because it removes the sinumpaang salaysay from the law on succession and at the same time it renders irrelevant the actual use of self adjudication. Now the NHA can actually now decide without considering the affidavit of self adjudication. Which if have been allowed by the court and just focus on whether or not there was a valid assignment of right between Margarita and Francisca--- that was their theory. And on that premise the NHA granted the petition of francisca.

For the purposes of discussion, with that ruling of the S.C, that the other heir of Margarita had a estate in the contract to sell, does it necessarily mean all is lost for francisca? That she could no longer claim the right to the property as to be her own-there is a possibility that she may acquire the property solely and exclusively--- how? Remember the sinumpaang salaysay? S.C only rejected it as a deed of assignment but it does not rule upon the validity as a last will and testament.--- bahala n yung probate court dian kung yan ay valid as a last will and testament. If that sinumpaang salaysay is obtained as a last will and testament, then it would be possible for francisca that she would be declare as the sole owner or sole holder of the interest in the contract to sell by virtue of the sinumpaang salaysay, that is if it would be validated as a last will and testament.

4

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 777. The rights to the succession are transmitted from the moment of the death of the decedent.

How is it possible? Mixed succession.

Article 777—the right of succession are transmitted from the moment of death of the testator--- what does that mean? Illustration: Decedent: Pedro ; died at 4pm Heirs: Mark, Lucas and Juan

What is mixed succession? How does the law define mixed succession? Mixed succession is that effected partly by will and partly by operation of law. article 777—it implies that death is the only requisite for succession to happen, that is not correct, death is not sufficient, because aside from the death of the decedent it further requires that there should be a basis for succession, either by the compliance of the last will and testament or provisions in the law, but remember class in our jurisdiction testamentary succession is given preference over the intestate succession, that is why you only refer to the provision in the law in the absence of or in the sufficiency of the last will and testament that left behind by the testator.

Supposing that the filiation of lucas, mark and Juan are not that are not establish at the time that Pedro died that the court litigation lasted for around 15yrs to establish their filiation. So 15 years after the death of pedro a lot of things had happened, his business has grown and his estate has doubled in value, so how much mark, Lukas and juan are entitled to get? So what value do we use? The value at the time when pedro died or the value 15yrs after? 15yrs after, because they become the owners at the time of Pedro’s death. Even if the filiation was proved after 15 years, it will retroact at the time when the decedent died. They are owners as of 4pm, at the precise moment when the decedent died

But even if you have death, if you have a last will and testament or even in the provision of the law would be applicable, this would not be enough for succession to take place. What else must happen? There should be an acceptance.

With regard to the fruits, what will be the basis of their right? To the fruits, to the increase of the property by the estate of pedro--- is it also by virtue of their right to succeed which was deemed vested at the time of pedro’s death? So as of 4pm at the day of Pedro’s death any acquisition that they made in the form of fruit or an income of the property would vest in them by virtue of Ownership no longer as the right of succession.

Why should there be an acceptance? What is the rationale of the law for requiring an acceptance? Because no one can be forced to accept the liberality of another.. in an abstract level it would seems to be unthinkable that anyone would not want to be left with something gratuitously. But if you would consider certain facts or certain circumstances there maybe more than ankle justification for the purpose of refuse.

When we speak of decedent we refer to whom? Who is the decedent? The person who has died.

Example: if the X boyfriend of your wife would leave a last will and testament giving her momento of their relationship before would you be happy if your wife accept the inheritance—your wife would be hesitant to accept the inheritance. The law recognizes her right to refuse. If you don’t want to accept the liberality you can actually decline, there would be no succession taking place. So tatlo yun there should be death, basis of succession and acceptance.

Is it different from the testator? So the testator is also the decedent only he left better prepared because he left a last will and testament. And what do you call the people who stands to inherit from the decedent? The heirs,

When we speak of death, what kind of death that the law contemplates? Either actual or presumptive death.

And the heirs, the basis of their right to inherit would be? Is it enough the heirs have right? Either provided by the will or provided by the provisions of the law. And in the absence of the will they have to rely on what is provided by the law.

Actual death- failure to inhale oxygen, physical death, actual death, clinical death.

Is it possible that they rely both on the provisions of the will and the provisions of the law? It’s possible.

Presumptive death- when the person is missing for the period of 7 yrs he is presumed to be death, but for the 5

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH purposes of succession 10 years from disappearance but if he disappears in the age of 75- absence of 5yrs will be sufficient.

Now suppose that we have these circumstances, there is a disappearance for 10 or 5 yrs or a special disappearance for 4yrs, what are you suppose to do to be able to invoke presumptive death? Are you suppose to go to court and ask it to declare that the person disappearing, as presumptive death? No need to go to court, the court will not entertain such claim, for the reason that any declaration of presumptive death never attain finality, it can always over turn or negated by the suddenly appearance of the person who has been declared dead. so what do you do? You just simply file an action for the settlement of his estate and invoke in that proceeding that he has been absent for this long justifying the opening of his succession, but to bring a separate or independent action for that purpose alone, you’ll not be entertain by the court.

So what is the basis for declaration of presumptive death? His disappearance but not just ordinary disappearance it should be continuous disappearance that is the basis of the law. Disappearance must be continuous and unbroken. 10 yrs as a general rule but by way of exception if the person disappeared after the age of 75, 5 yrs. Why do we have that exception? Because the law makes a presumption that the person is weak before he disappears. When do we consider or deemed that death has taken place in case of presumptive death? It is at the end of 10 yrs or five year period.

Can the disappearance occasioned by special circumstances under art. 391, when is a person deemed to have died? at the time of the disappearance.

Now this period set forth, would there be any further qualification to the rule relating to them? Do we always observe to the 10yr or 5 yr period? No.

USON VS DEL ROSARIO Facts: Faustino is married to maria uson but he also have a sideline he had an affair to maria del rosario in whom he had 4 children—this shows how aggressive a mistress can be—we have the legal wife on the other and a mistress on the other hand, and yet after the death of the husband, what did the mistress do? She was the one who aggressively took over the land left by the husband although she is a mistress, although matalino din si Faustino kasi pareho ng pangalan ang kinuha niang asawa at kabit, db? Kaya siguro ngkaroon sila ng anak ni maria del rosario dahil he took a wife before it was discovered by maria uson. Faustino died before the effectivity of the civil code. Under the old civil code illegitimate children don’t have a successional right what was the basis of maria del rosario in claiming the land? Her basis was the provision of the new civil code giving right to succession to illegitimate children , the civil code took effect 1950, Faustino died in 1946. What was in the new civil code for it to apply retroactively? Vested right, this is the goal of her contention lies, there was a provision an ante___ provisions in the new civil code which says “that all new rights created

Why? There are circumstances that the 10yr and 5yr period are not observed when the person who disappear is in danger of death. In that case what period do we follow? 4 yrs. So what are these circumstances that would justify shortening the period? • Vessel or aircraft lost during its voyage; • during war when the person missing is a member of the armed forces and he actually participated in the war; and • in other cases when there is a danger of death Disappearance under the danger of death—there is uncertainty whether the person survive, this is the essence of the provision, that is why you are to presume that he died. Example: the 9/11 incident if the person was inside the twin tower before the incident happen and after that he could no longer be located, then he is presumably disappear under the circumstances grave danger to his life, and if he could no longer be located, his body could no longer be located then we are justified to presume that he died in the attack. 6

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH thereunder will be given a retro active effect even to those situation which arose under the old civil code, but subject to one very important condition that no vested right are impaired. Were there already vested rights if the successional rights were transferred to the illegitimate children of Faustino. And what did the court say? The right of the wife would be impaired to succeed to the estate of the husband was already vested, when? At the moment of his death, because his death precisely open succession. So when he died rights are already transferred to maria uson, they were vested in her, that is why the right given to the legitimate children could not be given retro active effect because to do so would mean a reduction of the right of maria uson which was already vested.

change of heart, she no longer wanted to continue the compromise agreement perhaps she was thinking that she was getting the mortem of the deed. Siguro naisip nia masmarami p xiang makukuha kung itutuloy na lang nia yung laban instead of compromising but there was a compromise agreement so it was a valid agreement. So what does she do? She invoke the case of guevarra vs. guevarra, she was assailing the validity of the compromise agreement on the ground that it was according to her invalid because it amounted to the partition of the decedent prior to the probate of the will. Sabi ni taciana hindi yan pepwede Ruling: but the court said no the ruling in guevarra is not even applicable because this is not a partition of the estate, what you simply did was to sell your inchoate right it was a waiver of whatever inheritance you are entitled to both estate, but was that valid? Can she do that? Yes, because at the time of death of the decedents both josefa and Francisco she was already entitled to the inheritance. But there is a difference between being entitled and being in actual possession of the inheritance. Actual possession can take place after the passage considerable time, but after the moment of death you are already an heir you are already entitled to the inheritance regardless of when you will going to be in actual possession of the inheritance. It maybe 1yr after, it maybe 10yrs after it doesn’t matter. the law recognizes your right at the moment of death. Now what can you do at that time when you only have this right in the out-clock, kasi nga wala p sayo yung inheritance ano naman ang silbi non, may mana nga ako wala naman sakin ang mana ko, You can actually exercise right of ownership to your right and one act of ownership will be what? The right to dispose and this is what exactly what tasiana did, she disposes her right to the inheritance, can she do that? Absolutely, because she is the owner of that right and does she do it? Yes she did through the compromise agreement. The compromise agreement is valid and binding upon tasiana. What actually can comprise your

It is provided in Art. 2253 that the new rights recognized by the New Civil Code in favor of illegitimate children have retroactive effect only when they don’t prejudice any vested right of the same origin. From the moment of decedent’s death, the rights of inheritance of his wife over the parcels of land became vested. Hence, the new rights recognized by NCC in favor on the illegitimate children of decedent can’t be asserted to the impairment of the vested right of a person. DE BORJA VS VDA. DE BORJA Facts: There are two proceedings, one in rizal and one in nueva ecija. The one in rizal was the settlement of the estate of Francisco, the one in nueva ecija was the probate of the will of josefa, the relationship of the stepson and step-mom was getting tumultuous by the moment. so they entered into a compromise agreement, in that agreement, tasiana was waiving all her rights that she has to the estate of both josefa and Francisco for the sum of 800,000. Jose, the step son submitted the compromise agreement both the cfi of rizal and the cfi of nueva ecija. The cfi of rizal approved the compromise agreement, the cfi of nueva ecija denied. So appeal was taken by both tasiana and jose from the rulings of the lower court. But tasiana technically had a 7

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH the decedent. Hence, her heirs should be allowed to be substituted as parties in interest for the decedent.

inheritance at the end? After the settlement proceedings are completed might may not be the same as what she thought her value of her inheritance at the time of the testator’s death. Kunyare at the time of death the value is 500,000, pero you must know during the settlement proceeding, there will be inventory and satisfaction of the obligation of the decedent. mas madaming obligasyon mas maliit ang matitirang net estate. mas maliit ang net estate mas maliit ang paghahatihatian. So it is possible that the value of the inheritance given at the time of death, may actually be reduce after the obligation of the estate has been satisfied. What is the significance of that possibility? It simply means that the transferee, the one who creates the transferor in this case tasiana, the money for the waiver, the money for the right, actually stance at risk, he may receive less than what he paid for kasi nga pwedeng magbago yung value after the settlement of the estate. To summarize Whatever transmissible rights sold or acquired by a person will be subject of the outcome of the settlement proceeding. Possible b n matapus kuing bilhin yung part ni taciana e wala pa akong makuha sa huli? Yes, that possible, if the obligation of the estate are far more than the property, so ano mangyayari sa binayaran q kay tasiana? Deemed lost, I cannot recover

WILLS4 Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real or personal property are respectively given by virtue of will.

Is their a distinction between an heir and legatee/devisee? Yes Distinguished • heir is a person called to the succession either by the provision of a will or by operation of law • Devisees and legatees are persons to whom gifts of real or personal property are respectively given by virtue of will Does the law make a distinction? no Why is it necessary to make a distinction, when the law itself does not? The distinction between an heir and devisees and legatees would appear to be significant with regard to one specific instance which is Preterition. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of an heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation (art.854)

The compromise agreement is valid, since a hereditary share in a decedent estate is vested immediately from the moment of the death of the decedent, although the Compromise Agreement has been entered into pending probate of the husband’s will. nd The 2 wife already had an interest in the hereditary estate, though not yet determined. The effect of such alienation, though, is to be deemed limited to what is ultimately adjudicated to the vendor heir.

What is effect of preterition? annulling the institution of an heir How is preterition be relevant? If you are an heir and if there is Preterition your institution as an heir will be annulled, which means that you will not receive under the will. Example: It was stated in the will that the sole heir will be Mr. A but he is not related to the testator and it is proven that there is Preterition, so instead of being the sole heir and receiving the testator’s entire estate, he will end up receiving nothing. Ganun katindi and effect the Preterition. But if the testator instituted Mr. A not as an heir but a devisee or legatee, even there is Preterition and the institution of an heir is annulled,

BONILLA VS BARCENA Since the decedent was still alive when the case to quiet a title was filed, the court should therefore, had acquired jurisdiction over the person. Upon such death, her heirs had become the absolute owners of her property, subject to the rights and obligations of 8

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH the devise or legacy in Mr. A’s favor will still be respected. That’s why it is important to determine in what capacity the person is receiving.

Different kind of succession: • Testamentary – based on last will and testament • Intestate – by operation of law; in the absence of last will and testament, and when there no valid last will and testament as when he does not dispose of all his properties • Mixed – Art. 780. It is effected partly by will or operation of law. • Contractual - donations propter nuptias of future property, made by one of the future spouses to the other to take effect after death and to be done in the marriage settlement which is governed by Statute of Frauds. • Compulsory

The law does not help us in relation to that one because there is an overlapping distinction between an heir and devisees and legatees. The definition of heir is broad enough to include the definition of devisees and legatees as defined in Art. 782. So the conclusion is a devisee or legatee is also an heir, so where do you draw the line? The authorities are one in saying that the better definition would be an HEIR is a person given the entire estate or a portion of estate, on the other hand a devisees and legatees would succeed to the testator’s personal or real property.

Testamentary Succession Article 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law.

The problem is if the estate is comprised of one single property. How would you treat the person who will receive the entire estate and there is Preterition? Example: “I institute Ms. Cruz as my heir, then malalaman ninyo that my only property is house and lot. The testator omitted his children in the will. So what happens now? If you treat her as an heir, she will not receive anything because her institution as such will be completely annulled, but if you treat as devisee she will still receive at least ½ of the property because, the legitime of the children comprises half of the estate. Because of the device and legacy, you only have to reduce insofar as it does not impair the legitime. Hence, even there is Preterition and the institution of the heir is annulled, the devise and legacy will be respected provided that the legitimes are not impaired.

Intestate Succession Article 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Mixed Succession Article 780. Mixed succession is that effected partly by will and partly by operation of law.

Compulsory Succession Compulsory - also by operation of law; succession to the legitime, takes place DESPITE the presence of a valid will and applies both in testate and intestate succession; it is compulsory succession because the compulsion lies upon the decedent who has no choice but to leave a certain portion of his property to certain heirs who are specified in the law. The compulsory heirs will also make up the intestate heirs because the compulsory heir is necessarily the testator’s nearest relatives. Kaya may confusion between intestate heirs and compulsory heirs. NOTE: The right of intestate heir to succeed may be defeated by simply executing the last will and testament but the right of compulsory heir cannot

So how will we treat her? Go by the tenor of the institution. If her institution is to receive the entire estate and not to a specific property, we will treat her as heir, dahil isa lang yung property sa estate. It was the intention of the testator and because of Preteretion, she will not receive anything. But if the disposition pertains to the testator’s house and lot, she will be treated as a devisee. In this case there will be impairment of the devise to the extent of ½ in order not to impair the legitime of the children but the devise will be respected. 9

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH be defeated even upon the execution of a last will and testament.

Why is it contractual? Because such disposition is made in a marriage settlement

Who are to be considered as compulsory heirs under the law? The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants with respect to their legitimate parents and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other legitimate children referred to in article 287. (Art.887)

Why is it succession? Effective upon death What is the form of marriage settlement? What is it about the marriage settlement which makes us say that the disposition made therein which takes effect upon death would be a form of contractual succession? A contract In the former Civil Code, oral marriage settlement is allowed which is valid but unenforceable, but in the Family Code it is required to be in writing to be valid and enforceable, hence we have no more Contractual Succession because the Family Code explicitly requires that donation of future spouses to take effect upon death must now comply with the formalities of wills and succession Article. 728. Donations which are to take effect upon. the death of the donor partake of the nature of testamentary provisions, and shall be governed in the Title on Succession.

Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (Art.886) In case of illegitimate children, apply first the Iron Curtain Rule then qualify

Article 783. A will is an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.

Compulsory Succession (illustration) Mr. Francisco instituted Mr. X as his sole heir. When he died he was survived by his wife, one legitimate child and four illegitimate children. Mr. X argues that he is the sole heir. How much will he receive? The surviving spouse will get 1/4, the legitimate child will get ½ his legitime and the illegitimate children will receive ½ of the share of legitimate child which is 1/4 hence Mr. X will not receive anything because of compulsory succession.

In the definition provided by law, what is the indispensable requirement to make the will a valid last will and testament? There must be a disposition to take effect after death. If this element is lacking we can conclude that it is only an ordinary instrument that need not comply with the formalities prescribed by law for the last will and testament. Example: Mr. Flojo has illegitimate child but never recognized that the child was his, but he drew an instrument where he acknowledged the fact that he is the father of the child but the recognition must take effect only upon his death. That instrument was signed by Mr. flojo but does not comply with the requirements provided by law for a valid last will and testament. Would it still be a valid instrument? Will it be given weight by the Court? YES, because the instrument is NOT a last will and testament and therefore to be valid the same need not comply with the formalities required by law for a last will and testament.

Compulsory Succession takes precedence over testate and intestate succession. If you have Compulsory Heir you can only control the decedent ___ portion of the estate which is known as the “free portion” – it depends on the number and type of Compulsory Heir. Testate succession takes precedence over intestate, why? because it is expresses the desires and wishes of the testator while the latter contains only the presumed will of the testator. Contractual Succession That which takes place when the future spouses donate each other in their marriage settlement future property in the event of death

Why do you say that it is not a last will and testament? Because it does not contain any disposition to take effect upon death. 10

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What if the only provision in the will is disinheritance and nothing else? It would amount to indirect disposition in favor of intestate heirs who would receive in lieu of disinherited heir.

Even if you are married you can have your separate property, now if what was deposited is the separate property of the wife, then the contention of Rowena the executrix is valid. Because it will be a donation of the wife of HER property to the husband to take effect upon death, hence a donation mortis casua which must be contained in a last will and testament complying with the formalities required by law for a valid will. But if the fund is NOT a separate property of the wife and NOT of the husband, the fund is considered as CONJUGAL PROPERTY. Under the law if they both agree, they can actually dispose of it in any way they want. In this case, they invested the conjugal funds in the bank account in a form of Survivorship Agreement.

VITUG VERSUS CA Facts: What does the husband want from the estate? Reimbursement for his advances he made for the estate. Where did the money in the bank account come from? From their conjugal property. How did Rowena Corona the executrix, attacked the Survivorship Agreement? That it is not valid because the contents of the same provide that either one of the spouses will get the fund upon the death of either one of them, hence she contends that it was a disposition mortis causa, meant to take effect upon the death and therefore the Survivorship Agreement should have complied with the formalities of a valid will.

ALUAD VERSUS ALUAD Discussion: If the instrument is to be treated as a last will and testament it would be NOT be valid, but if the same is treated a donation inter vivos it would be valid because there was a conveyance of property. In this case the same is notarized, there were 2 witnesses and there is conveyance of property which are sufficient to make the donation inter vivos valid. Supreme Court held that it was a donation mortis causa because it will take effect upon the death of Matilde but it did not follow the requirements provided by law for the validity of a last will and testament. Why was there even a conclusion as to the true nature of the donation? Because of the provision in the instrument saying “anytime during the lifetime of the donor or anyone of them should survive, they could use, encumber or even dispose of any or all of the parcels of land herein donated”.

Did it complied with the formalities of a valid will? NO! It was just an ordinary contract, it was hardly a will. How did the Supreme Court resolved the issue? The Survivorship Agreement is valid and need not comply with the formalities required for a valid last will and testament because it is not a donation mortis causa because the property are conjugal. In a future marriage you have the husband, wife and conjugal partnership of future properties. Inside that marriage there are three patrimonies: the husband, wife and the conjugal partnership or community property.

Implied and even possible that Maria can enjoy the property already even though Matilde has not died yet and this would support the contention that it was actually a donation intervivos because it took effect during the lifetime of the donor but the Supreme Court said NO, there was only a 11

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death

miswording because the donation really would took effect upon the death of Matilde. In the end, it held that the same did not comply with the formalities prescribed by law for a valid will hence it did not convey the property to Maria or to put it more accurately it never at all conveyed the property to Maria during the lifetime of Matilde that’s why Matilde was never precluded or prevented from selling her property even after the instrument was executed by her.

What are the characteristics of a valid will? • Individual • Unilateral • Freely and voluntary • Solemn • Dispositive of property • Mortis Causa • Purely personal • ambulatory

Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

Can the making of a will be delegated? Where do you draw the line, of what may be delegated and not? The mechanical act (typing) of drafting the will may be delegated, or writing the will, unless it is holographic will.

Purely Personal means the disposition in the will should also be made by the testator himself but nonetheless it does not preclude of the delegation of the mechanical aspect of preparing the will. For example, typing or encoding the will maybe delegated to the lawyer or the technical or agent of the lawyer.

Potential testator hired Atty. De Chavez in relation to his will. The testator must specify his heirs first, in what capacity they are succeeding whether as heirs or legatees or devisees, specify how much and what property they will receive, the institutions or establishments and the specific amount or property they are getting. Atty. De Chavez can fill in the details which amount of making the will for the testator but even the bulk of the work was done by the lawyer, the fact remains that all of the dispositions were done by the testator.

Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. What comprises testamentary disposition which cannot be delegated? • Designation/appointment of heirs, legatees or devisees • Duration and efficacy of their (heirs, legatees and devisees) designation • Determination of the portion they are to take when referred to by name (“when referred to by name”an important qualification because of Art. 786, wherein the testator is allowed to make a delegation of authority to designate not just the identity of the recipient but also the portion to be received by the person. And this will happen if the testator will leave a specific amount or property to specified classes or causes.)

Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. Article 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

Would there be an instance when a certain degree of delegation is nonetheless allowed by law? There can be delegation provided that the amount and property are specified, and the class of persons or organizations, the person who was given the power to make the determination is limited to naming of persons or organizations belonging to those specified and determination of the amount to be given to them.

Article 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. Article 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.

WILLS5 12

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH The person who was given an authority has actually have a power not just to name the individual or entity or specified classes or cause specified by the testator but he also have the power to determine how much each of this people will be getting. In reality, that pertains to a greater delegated authority given to the third person because when the recipient is named automatically the third person can no longer venture into designating the portion they are to take. (When there is a name) E.g “I leave my estate to Peter, Juan and David and I give the authority to Ms. Aguirre to determine how much each of one will be receiving” that is not allowed (the exercise of the third person’s power) why? Because they are named individually and yet if the testator will say “I’m leaving Php100,000.00 to women’s causes” and the third person authorize to carry out the disposition is Ms. Aguirre, we know what powers are given to her by virtue of that disposition, she (the testator) actually name the causes, the women causes, even the organization to the definite of that disposition.

It is equally important to find out what does other sense means, if there is no such determination of what does that other sense means we cannot give effect to the testamentary intent. Example: Mr. Mateo, a single man, not married, without children but he is known to have a long term relationship with Ms. Montesa, and it is publicly known that he calls Ms. Montesa as “baby”. So he made a will saying that his leaving his properties to his only one “Baby”. Who is this baby in the ordinary sense? It can only refer to a child which in fact he does not have. Under the circumstances we would know that he intended to use the word “baby” in another sense. What about technical words? Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense.

Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

Example: Mr. Mateo, a fish vendor, he made a will on his own, by simply writing it on a piece of paper, knowingly that he has an adopted child but such child was not judicially adopted. He made a will and gave everything that he had to his adopted child Ms. Aguirre. After his death somebody contested the will saying that such deposition cannot be given an effect because it say “adopted child”- someone who has been legally adopted. Does it mean that the disposition cannot be effected and the properties should go to the legal heirs? In this case, we can actually argued that notwithstanding that the testator uses a technical term we cannot give its interpretation as judicially adopted child because it is established that it is an ordinary layman and he is not familiar with legal terms and being a holographic will so therefore we can relax the rule and make use of an interpretation that “adopted child” in an ordinary layman understanding.

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense.

The very purpose of statutory construction is always to determine the intention of the legislature, to determine and to give effect the legislative intent. In Succession, what will be determined is testamentary intent or the intention of the testator. What is the testator’s intent, that’s why we have a law allowing the person to make a last will and testament is to allow that person with unique privilege to control the disposition of his property after his death. So, because of that purpose we should determine what the testamentary intent is. First among the rules is when the testator make use of ordinary words, what should we give in ordinary words? Also ordinary meaning

Article 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.

Would there be any exceptions? Whenever we have such fact that there is a determination that there was an intention to use such words in another sense

Article 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. 13

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Consistent with our purpose that we should always determine the testamentary intent, the law acknowledges that we always find a vast interpretation that will give effect to all the provision of the will or at least every provision will have come effect. The law also tells us that if it is impossible to give effect to all of the provisions meaning to say that we have to nullify some of the provision, then we preferred the validity of other provisions unless it is shown that the testator would not have made such other dispositions if the first invalid disposition had not been made.

the will such ambiguity is not apparent, we will only find out the ambiguity outside the will or circumstances outside the will which makes the ambiguity Latent. How should we solve such latent ambiguity? Consult the will first, if there is no such answer, consult extrinsic evidence In kinds of ambiguity our first resort will always be the will because it is the repository of testamentary intent. Always consult the will. If we can’t find the answers in the will then we will be allowed to go outside of the will and consider extrinsic evidence.

Example: 1st situation: First Provision: Testator is giving a parcel of land to his concubine Second Provision: the testator made another disposition giving 1M to the same person but he did not make an express reference to that woman as a Mistress.

What kind of extrinsic evidence? All kinds of extrinsic evidence except declarations or testimonies of the testator

oral

Why are we excluding those? Because a dead person can no longer refute what is being attributed to him.

The first provision is not valid but the second provision is valid because there is no palpable recognition of their illicit relationship which makes the first provision null and void.

Supposing that one of the Alcantaras basis was not an oral testimony but it was an email message, would that constitute a valid extrinsic evidence? It can be accepted because it is not an oral declaration.

nd

2 situation: First Provision: Testator is giving a parcel of land to his concubine Second provision: the testator made another disposition giving 1M for construct a house on the parcel of land given to the same person “in relation to the first disposition”

Patent ambiguity- such ambiguity that is palpably apparent on the face of the will, meaning by reading the will itself and under the provision where the ambiguity lies, we can see that there is something wrong with the disposition. Example: I bequeath all of my houses to my friend to some of my cousins

There is a dependency, so the first disposition being invalid because of the illicit relationship such invalidity is carried to nd the 2 disposition.

How do we solve patent ambiguity? After we go by the provision of the will, then we can consider extrinsic evidence but with certain limitation because the law provides that we have to consider the circumstances under which the will was made, all other considerations will be excluded.

As we said before, it is always possible that there is an ambiguity or inaccuracy to appear in the disposition in a will. But what kind of ambiguity can a will suffer? 2 kinds of ambiguity • Latent ambiguity • Patent ambiguity

Example: in the preceding example, if it can be shown that at the time of making his will 10 of his cousins attempted to kill him, if the testator is estranged with his cousins he will not leave them something to his cousins who made the attempt.

There is ambiguity when there is an: • Imperfect description • When no person or property exactly answers the description.

Article 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession.

Example: “I’m giving my land to my co-employee Alcantara” it appears that there are 2 persons both of them surnamed Alcantara working in the same company where the testator is employed. It creates an ambiguity which of the two Alcantaras is the one that the testator is referring. In reading 14

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention.

Can she be entitled to the other 9M? yes, provided that there is an explicit provision saying that the will covers after acquired properties. If there is no such provision,

Point reference in Art. 781 is the death of the decedent/succession opens, the successional rights will be vested. Meaning to say that inheritance will include those properties which accrue to the inheritance after the opening of succession. Because any property (income, fruits) that will accrue after the succession is opened, will that form part of the inheritance? Inheritance is something that you received from the decedent by virtue of succession, but if succession has been opened and there is income, interest or accessions to the property, would u as heir, be entitled to those income, interest or accessions by virtue of being an heir? Or u become entitled to them because u are the owner of the principal on which they accrued? As an owner

what will happen to the 9M? it will govern by intestate succession. Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made.

What govern the execution of last will and testament? • Extrinsic validity- shall be govern by the law in force at the time the will is made • Intrinsic validity- shall be governed by the law in force at the time of decedent’s death

Art. 781 should not be in interpreted as being in any way contradictory to Art. 793 because Art. 781 already pertain to properties accruing to inheritance whose ownership has already been vested.

Testamentary Capacity How important is testamentary capacity in the validity of a last will and testament? If u don’t have testamentary capacity, u cannot made a valid will, the last will and testament is null and void

Example: the inheritance includes a saving account, as we know saving account earns income by way of interest. July 11, the interest that will be accruing after july 11, will go to the heirs by virtue of the savings account, the heirs are entitled because he is the owner because ownership was vested when succession was opened.

When testamentary capacity should take place? At the time of making of the will

Art.793, basically says any last will and testament that has been made can only cover those properties existing at the time of making of the will, it cannot include after acquired properties. It is important to understand that when we say after-acquired properties the point of preference is the making of the will not the opening of succession. So any last will and testament that has been made cannot cover afteracquired properties unless there is an express provision in the will covering after acquired properties.

Who has a capacity to make a will? Article 796. All persons who are not expressly prohibited by law may make a will. Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

The person should be of sound mind. If u would look around the classroom, who among ur classmate is of unsound mind? None

Example: u make a will, in this will the savings account is given to Ms. Aguirre, the will is made today July 11. After July 11, you as the testator made a deposit with the savings account, the original deposit amount of 1M has grown to 10M at the time of ur death. Will Ms. Aguirre be entitled to the 10M? the amount that has been made at the time of the death of the testator? Or the 1m, the amount that is the same in the provision of the will? 1M

Why? What does the law presumes? The law presumes that every person is of sound mind Why does the law presumes? It is easier to make such presumption. What is soundness of mind? When does a person consider that he is of sound mind? Requirements of sound mind only for the purpose wills and succession

why is she not entitled to the other 9M? because it is in the nature of after acquired property, acquired after the making of the will. 15

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH o o o

Why lucid interval? Because the law only requires that testamentary capacity be present at the time of the execution of the will, if the lucid interval will allow the testator to do that, then the will is valid.

The testator must know the nature of the estate to be disposed of The proper object objects of his bounty The character of the testamentary act

Negative definition of sound mind- the law does not require that the mind is wholly unbroken or unimpaired by disease, injury or other causes.

Article 797. Persons of either sex under eighteen years of age cannot make a will.

Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

Would the gender of the testator affect the testamentary capacity? No

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. Is this an accurate definition that a will is an act? No, the will must be in writing. An oral will is not valid.

What should be present when it comes to soundness of mind for us to say that a person although his mind in impaired or injured? He should be in touch with the reality

Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

Article 802. A married woman may make a will without the consent of her husband, and without the authority of the court.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.

Article 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property.

General Rule- the presumption is in favor of soundness of mind

2 kinds of will • Notarial will • Holographic will

Exception- if the testator, one month, or less, before making his will was publicly known to be insane, the presumption is now abandoned

The notarial will is more formal than holographic will. A holographic will is written, dated and signed in the hand writing of the testator.

Who has the burden of proving the soundness of mind? None, because there is a presumption of soundness of mind

SUROZA VS HONRADO Testatrix, who was an illiterate, supposedly executed a notarial will in English and was thumbmarked by her wherein she bequeathed all her estate to her supposed granddaughter Marilyn. The opposition to the probate of said will assailed the due execution thereof, and alleged that the institution of Marilyn as heir was void because of preterition of Agapito, testatrix’s anak-anakan. The Supreme Court held that the will itself stated that the same had to be translated to the Filipino. This could only mean that the will is written in a language not known to the illiterate testatrix. The judge, on perusing the will, could have readily perceived that the will is void.

Who has the burden of proving the unsoundness of mind? The person whom opposes the probate of the will, unless the exception applies which is when the testator is publicly known to be insane a month or less after the execution of the will, in which case the burden is upon the proponent of the will. What does the proponent of the will prove? That the will is executed during lucid interval

16

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH •

ABANGAN VS ABANGAN The opposition to the probate contended that there was no showing that testatrix knew the dialect in which the will was written. The Supreme Court held that the circumstance that the will was executed in the dialect of Cebu, where testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew the dialect. Even if this presumption doesn’t apply, still the attestation clause need not allege knowledge on testator’s part, since this fact may be proved by evidence aliunde

It must be acknowledged before a notary public by the testator and witnesses

You said that these requisites that you mentioned is applicable to a notarial will. Is there any other kind of will? Holographic will Holographic will is one which must be entirely written, dated and signed by the hand (in the handwriting) of the testator himself. You can see that the holographic will is less formal than a Notarial will. But even then, there are certain requisites that are common to both notarial will or holographic will, so what are these requisites? • It must be in writing and • It must be in the language or dialect known to the testator.

WILLS6 Article 804. Every will must be in writing and executed in a language or dialect known to the testator. Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

Now this fact, whether the will is written or not, it is immediately apparent. Now, what about that the will must be in the language or dialect known to the testator? Does the law require that this requirement must be in the will? In other words, Must the will say so? Or must the will states that it must be in the language or dialect known to the testator? NO.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

How do we establish this? It doesn’t have to appear in the will, it may proven by extrinsic evidence

Let’s go to the requisites of a valid notarial or ordinary will.

Now, additionally, would there be any presumption in the law regarding the knowledge of the testator of the language or dialect known to the testator? Yes. There is a presumption that testator knows the language or dialect.

What are the requisites? • It must be in writing • It must be in a language or dialect known to the testator. • It must be subscribed at the end thereof by the testator himself or by the testator’s name written at the end thereof by the testator himself or by the testator’s name written by some other person in his presence and by his express direction. • It must be attested and subscribed by three or more credible witness in the presence of the testator and of one another. • It must be signed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof except the last on the left margin • All pages must be numbered correlatively in letters placed on the upper part of each page. • It must contain an attestation clause

What is the basis of your answer? Is it the presumption provided for by law? What do you think is the basis of this presumption? What is the authority to make this presumption? It may also be inferred from the fact that it was made in the dialect of the locality where testator is a resident and that dialect of that locality is the same dialect in which the will is written ABANGAN v. ABANGAN What is the issue in relation to the provision of article 804? The will did not say that it was in the language or dialect known to the testator. 17

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Would that be a fatal defect? I think to establish fraud. And it can be proven by evidence aliunde.

What is the purpose of the signature appearing at the end of the disposition? To prevent fraud

The court still took the occasion, took the opportunity to lay down the presumption. The presumption is that the will is written in the language or dialect known to the testator, in the locality, or if executed, or if the testator happens to be residing in the same locality.

What about the signature appearing on the left hand margin? How would the signature on the left hand margin serves to show the number of pages of the will? the purpose should be to authenticate or to identify the pages of the will but not to show the number of pages that the will has. The presence of the signature is to prevent any intercalation or the substitution of the pages.

What is the effect if a will is shown is written to be not in the language or dialect known to the testator? The will is null and void

Who are person that can subscribe the will? Another person may subscribe the will. By some other person in his presence, and by his express direction and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

Let’s go to the requisites of a valid notarial will It must be subscribed at the end thereof by the testator himself or by the testator’s name written at the end thereof by the testator himself or by the testator’s name written by some other person in his presence and by his express direction.

The law does not require any justification or explanation before another person can subscribe the name of the testator for himself.

What does subscribe mean? To subscribe means to sign.

What is that required is that a third person should sign under the authority of the testator, in his presence and this fact should be reflected in the attestation clause. If it is not attested in the attestation clause, the will is Null and Void

When you are to signing a document, are you limited to signing your full signature? Does it require that it be in your full signature? No. It can be the initial, or the last name or the full name of the testator. Provided that the testator intends that to be his signature.

What should the third person write on the will if he is asked by the testator to sign for him? He should write the name of the testator

It is the matter of intention. SO if I have to write in full name, or if I have to write in usual signature, what matter is that it is his intention to use what you have written as his subscription.

Is it required that the third person should also write his name NO, it is not required Is it required that there is some kind of document evidencing authority to sign? No. It is not required. It is not required that a SPA be attached at the back of the will. This is already addressed that the signing be done at the presence of the testator.

What is the purpose of this requirement to subscribe? To identify the document as the will of the testator When we say that it is the purpose to identify, we are referring to the subscription of your name at the end of the will or in the left hand margin? Where should the signature appear? At the end of the will.

PAYAD V. TOLENTINO What does this case tells you? First, Subscription is not limited to affixing ones signature. Subscription can include printing of marks that can be associated to the testator. In this case, what mark is that, it is a Thumb mark. Secondly, a thumb mark is acceptable subscription. It is acceptable as a form of subscription then the will was not

You are seems to be very specific on the location, how come? Because when the testator signs at the end he intends that such is the last disposition

18

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH effectively signed by the third person on behalf of the testator because it is in thumb mark. Because of this, there was no longer need for a statement in the attestation clause to the effect that a third person signed in his presence and by his express direction.

contain such statement because of the presence of the cross. If the cross, unacceptable form of subscription to show that his presence will do away with the need for the attestation clause to inure the statement regarding the delegation of the authority made by the testator. Would it be acceptable act of subscription? Remember that subscription not with regard to the signature of the testator, although ideally it is by his full signature that the testator should subscribe or sign the will. In signing important documents, it should be in full signature. But such is not even a requirement. You can sign in your initials or in any way that you want so long as your intention is there. Now, supposing that there is such an intention here, would it be acceptable, would the cross be acceptable? can this be liken to a thumb mark? Supreme Court said, No. You cannot rely on the cross on the same manner that you rely on a thumb mark. Thumb marks are unique for every individual. No two thumb marks are alike. In other words, with regard to the thumb mark, there is a clear, categorical and an reliable association between a person who create the thumb mark and the person himself. There would be an association.

The attestation here would be perfectly valid MATIAS VS SALUD Facts: it would appear that the deceased, who left no ascendants or descendants, bequeathed most of her properties to her niece Aurea Matias, in recompense for the services rendered by the latter to the former for more than 30 years. Some legacies were made to her other nephews and nieces. Aurea Matias was appointed executrix without bond. The probate of the deceased’s alleged will was opposed by Basilia Salud, another niece of the deceased. After hearing, the trial court denied the document’s admission to probate, principally on the grounds that the will was not executed and witnessed as required by law; nonproduction of witnesses, and fraud in the execution of the will Ruling: The legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixed by him and that where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that another person wrote the testator’s name at his request. While in some cases the signing by mark was described in the will or in the attestation clause, it does not appear that the Court ever held that the absence of such description is a fatal defect. The will having been executed and witnessed as required by law, the same should be admitted to probate

But what about the cross? We said earlier that so long that the intention is there? But then, we have to think of over all purpose of these formalities and solemnities. What is the purpose? To guard against any fraud. If you accept this as sufficient subscription, would you still be faithful for this purpose regarding this fraud? Not anymore, because a cross is a cross. My cross would not be different to the cross of Ms. Bermudez and to the cross of Ms. Domingo. That is only a cross.

GARCIA VS LACUESTA In this case, the testator supposedly signs by affixing a cross to the will. And he never signs his name although his name was signed for him by Atty. Javier, the problem is, that the attestation clause did not indicate that there was an authority given to Atty. Javier to sign on behalf of the testator. So, what did he tried to do? He tried to invoke the previous cases in Payad v. Tolentino. They were saying that there is no need for attestation clause to

Who can say that it is my cross? It’s hard to tell. You cannot just readily accept it.

19

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH There was no showing even that this was the usual way that the signature signed his name.

It is immaterial, it does not matter, who actually write the name of the testator. It is immaterial who write the name for him, it is more irrelevant, it is more unimportant that the name of the person, does not appear in the will. Any discrepancy will not affect the validity of the will.

What does that tell you? Had it been the case that this was his usual signature, that this was what he best guide in terms of identifying himself, this could have been acceptable.

What about the witnesses, are you suppose to sign the will as well? What is the participation of the witnesses in the application of the will? The establishment not to the contents of the will which they do not have to know but to the fact of execution of the will. That’s why that the will should not have been in the language known to the witnesses, because they are not required to know the contents of the will.

If for example, in case of ZORRO- signing “Z” Would you accept? How do we identify him? By signing Z. And you apply the ruling of the Supreme Court, would you accept the letter “Z” as a subscription? Yes. Because in the case of Zorro, there is no doubt that usual way the testator Zorro signed his name or identify himself. There is an established association.

Now, what is their participation in the implication of the will? They are required to authenticate and identify the will and also, they are required to attest to its execution.

Whereas the cross which allegedly by Antero Mercado, there is no established connection between the cross and Mr. Mercado. There was no showing that that this was the usual way by which he signs. That statement is pregnant with implication. Had it been the reverse or had it been the usual way in signing his name, it could have been acceptable.

How do they carry out this function of identifying or authenticating the will? By signing on the left hand margin on each and every page of the will except the last page and same purpose as the signing of the testator, to prevent any intercalation of the papers of the will. The function of attesting the will? How was this done by the witnesses? They do it by executing an attestation clause. The attestation clause must state: the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

BARUT VS CABACUNGAN The implication was that the name of the testator and the signature of the person who supposedly wrote her name, were not done by one and the same person. Another person actually wrote the name of the testator and another person also signed below the name of the testator. Now, would this be a fatal defect? Remember that the law does not even require that the person who actually writes the name of the testator be identified in the will.

What constitutes presence? It constitutes Sight or Vision and Proximity of Position

You always suppose to write the name of the testator. It is sufficient that the attestation clause explained it, that a third person signs for the testator, in his presence and under his express authority.

Sight or Vision Act is done in the presence of one who if he wants to, with reasonable case, without 20

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH danger to his life and without changing his relative position can see the act.

witnesses in the presence of the testator and of one another.

It is sufficient if the person, if he wants to, can see the act by simply casting his eyes in the proper direction.

Why there is no presence? Because no matter what the witness does, the one who is supposedly in the bigger room, he cannot, by the mere moving of his head, casting of his eyes at direct direction of what is going on in the smaller room. There was a curtain between the two rooms.

Proximity of Position When the act is done at a point close to a person so that it may be said to be in his presence.

Requirement: the testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses

The requirement of presence applies to both witnesses and testator Must these elements of presence which is proximity and sight always concur? Only with respect to the witnesses. (that proximity and sight must concur) But to the testator who is blind, obviously, the requirement of sight cannot be met. It is a very well known fact that people who cannot see have

ICASIANO VS ICASIANO These requirements are mandatory. That’s why the will must be in the formal of document. So, if you do not comply with the mandatory requirement, ordinarily, your will, will be Null and Void. However, even as you say this, you should always be reminded, that these formalities are meant to safeguard the will. So if these objections of safeguarding the will are otherwise achieved, you do not have to be as ___ technical or formal requirement. To do so, would be to defeat the testamentary intent.

NERA VS RIMANDO In the case, we have two separate rooms.

witness testator witness

Curtain

So, in this case, the Supreme Court relaxed the rule. Why? First, because the witness who failed to signed the third page, testified in court. That he was threatened when the will was signed. Secondly, we have also in evidence a duplicate original, it is another copy of the will that was executed at the same time as the original. In evidence, a duplicate original or one executed simultaneously with the original copy is as good as the original. We can afford to relax the rule.

We have two adjoining rooms. A small room and big room. There was a curtain. The testator and the other witness was in the small room and the other, on the bigger room and that there was a curtain. In reality, it was established that all the witnesses were in a small room. But the Supreme Court was not happy on what the lower court held that it could not have mattered in the will.

CAGRO VS CAGRO This case is in relation to the requirement of the signatures of the witnesses on the left hand margin, but this time, in relation to their duty to provide an attestation clause of the will.

But the Supreme Court held that, had this been the case, that one of the witness was actually in the big room, and separate by a curtain and the will would have been invalid because there was no compliance with the requirement that signing be done by the testator in the presence of the witnesses and by the

The will here only consisted of a single page. However, the witnesses did not sign under the attestation clause, what they did sign was the left hand margin of the document, of the one page will. 21

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH When the will presented for probate it was opposed for this ground, that there was no attestation clause because of the failure of the witnesses to affix their names at the end of the attestation clause.

document consist of one page would necessarily include identification and authentication. Dissenting opinion of Justice Bautista That the Supreme Court may have been unduly strict in this case because the reason of supreme court that Maybe there is no attestation clause in the last will and testament and they only just typed it or attached it. This could be a more fatal defect. But according to Justice Bautista, the witnesses themselves testify that when they signed, the attestation clause was already in the will. What is his point, the point is that the objective of the law of safeguarding the will against fraud had already been achieved. There was no use to be strict anymore, nagsabi naman ang mga witnesses eh, when they signed, the attestation clause was already there. Mali lang siguro ang pinaglagyan ng ating lagda. But then, the Supreme Court stood by its ruling and declared that the will as null and void.

The proponents of the will wanted the SC to treat that the signature on the left hand margin as sufficient, both to authenticate (left hand margin) and to constitute as attestation of the last will and testament. What the Supreme Court says or how the Supreme Court explains? Why it cannot constitute that the signature on the left hand margin as sufficient signature as well for the attestation clause? Because of the purpose, we pointed out earlier that one is for authentication and identification and the other is more substantial act of attestation. How did the Supreme Court distinguish attesting the will or one simply identifying and authenticating a will? The Attestation clause is a written memorandum of the act or the circumstances surrounding the execution of the will. It is not simply a mechanical act of identifying or authenticating a document. It is more substantial than, when the only signature one which serves to authenticate or to identify a document, it could not expand its scope or its effect to include attesting.

Requirement: It must be acknowledge before a notary public by the testator and the witnesses. When we say acknowledge, what does it mean? Article 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

AZUELA VS CA We already know how the Supreme Court ruled on failure to sign the Attestation Clause in Cagro v. Cagro, what about the failure of the witnesses and the testator to acknowledge the will before a Notary Public? What is that about? What the notary public write on the will as acknowledgment? “nilagdaan ko at ninotaryo ko ngayong petsa ng…” Would that be sufficient acknowledgment? No, In fact the Supreme Court said you have to subscribe before this last day of… But according to the Supreme Court said that acknowledgment requires much more from the party acknowledging.

Say again that this is the document that the witnesses signed, by signing on the left hand margin, is not the same as saying that this document was published to the witnesses to them as the last will and testament that it was signed in their presence, that they all signed in the presence of the testator and of one another, that is different. What could have happened if the circumstances were reversed? Or what if the attestation clause which contains the signature of the witnesses and the left hand margin was remain blank? Then the will could have pass probate. For the simple reason that attesting a will, a one page will in this case would necessary include the act of identifying or authenticating a will. Identifying or authenticating does not necessarily include attesting but attesting. Specifically if the

So in relation to the requirement that we are discussing, the requirement of acknowledging before a notary public, what does the Supreme Court said? What was the explanation given by the Supreme Court. So what is that? What comprises acknowledgment? It was a declaration. It is a declaration that this is my act and this was done voluntarily. 22

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH JAVELLANA VS LEDESMA Whether or not the acknowledgment is considered to be a part of the execution of the will. The codicil here requires the acknowledgment, Why? The Codicil was executed after the effectivity of the Civil Code. The problem here is that the Notary Public did not affix his signature in the will in the presence of the testator. Would this be a fatal defect? Can the Notary Public also act as the witness to the will? If there are three or more witnesses, they can act as a witness, but if not, they cannot. The law requires that the will must be acknowledged before a notary public by the testator and the witnesses. And for practical point of view, a person cannot acknowledge before themselves. GUERRERO VS BIHIS Where was the will acknowledged? At the testatrix’s residence in Quezon City. The notary public was located in? Caloocan City Basically, a Notary Public who notarizes outside of the place of his commission, would not be acting as a Notary Public. Does not have any authority to act as a Notary Public. SO that, in the end, this will was not acknowledge before a commissioned officer. For that, the will is Null and Void.

23

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH WILLS7

How will these special circumstances affect the requirements for a valid notarial will? There would be additional requirements in order to make the will valid.

Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

What will be the additional requirements? If the testator is blind the reading should be done st twice and successively. 1 by one of the subscribing witnesses then followed by the notary public. We need not to follow a certain order. It can be interchanged.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

What if a person is shown to be deaf or cannot speak or both deaf and dumb? The fact that a person is deaf and dumb will not necessarily require the application of the additional requirements. It is only if it shown that the testator is not able to read and write in which case he needs to designate 2 persons to communicate the will the him in some practicable manner. Since the testator is deaf reading to him the will is useless so necessarily the person he assigns should be people who are comfortable with sign language.

What are the Requisites of notarial will? • It must be in writing • It must be in a language or dialect known to the testator • It must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence and by his express direction • It must be attested and subscribed by 3 or more credible witnesses in the presence of the testator and of one another • It must be signed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof, except the last, on the left margin • All the pages must be numbered correlatively in letters placed on the upper part of each page • It must contain an attestation clause • It must be acknowledge before a notary public by the testator and the witnesses

When is a person considered blind? Unable to see. There are various degrees of blindness. • Totally blind, • practically blind, • color blind (irrelevant). GARCIA VS VASQUEZ Facts: Laid the meaning of blindness for purposes of Art. 808 How old was the testator at that time? She was nearing 90. She died at 90 year old. How was the will prepared? Describe the physical appearance of the 1960 will. Written in a sheet of paper. It was obvious that whoever prepared the will tried to fit everything in that single sheet of paper. There was no margin (top or bottom or at the sides). Single spaced, was written in tagalong but with flavor of Cebuano. That is

The testator does not attest. Attestation is the sole act of the witnesses The right to make a will is given to every body except if they are expressly prohibited by law to make a will since the only requirement is testamentary capacity. So necessarily even if the person is illiterate, blind, deaf or dumb, or deaf and dumb that person still has the capacity to make a will.

24

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH obvious that it was prepared by someone not very well versed with the Tagalog dialect. There were typographical errors. BUT most importantly the testimony of the witnesses that the testatrix signed the will after reading it silently. She was not reading it aloud.

their last will and testament are not limited to those who are suffering from blindness. Even though you have difficulties seeing, even though you have very poor vision would fall under the characterization. This also holds true for illiterate, those who cannot read or write. Because of this since Art 808 is deemed applicable to Gliceria SC said that her 1960 will was duly attested, because the provision of Art 808 were not followed.

Why would that be significant? Had it been some other testator who made the will and he is blind or deaf mute, you would not entertain any doubts that he did read the will and he understood.

ALVARDO VS GAVIOLA Facts: This was the sequence of the events. He first executed a holographic will then he executed a notarial will. What is provided for in the notarial will? Disinheritance of the illegitimate son and revocation of the holographic will.

But what is about Gliceria which made the SC doubt that she really read the will and understood its content? It was said that she was nearing 90 when she executed the will. And of course such a person at that age is no longer in the peak of health. She has suffered many illnesses. Among which was cataract but the same was removed and she was treated w/ spectral lenses. But the lenses only allowed her to see at far distances, because it is not a natural lens which adjust the vision. If you read at a close distance you can no longer see or read. It is not conclusive that since there was evidence that she can still go around and entertain visitors on her ability to see, to read her last will and testament. Doctors also issued certification to the effect that she had good eyesight and this was the document or evidence that the proponent of the will was counting upon. But the doctor said that when he said that she has good vision, that means she could see at a distance and this does not include her ability to see near objects. The bottom line is that Gliceria was not totally blind but for purposes of the execution of her will did the SC consider her as someone who was blind and who therefore fall under the Art 808? Yes

What kind of probate was it? It was ante-mortem. Probate during the lifetime of the testator. And in fact, who petitioned for the probate of holographic will? Testator himself. Will was not read by the testator himself. There were 4 who were reading along with Atty. Rino. While Atty. Rino was reading it aloud. What was the condition of the testator at that time? He was suffering from glaucoma. In fact he had to modify his notarial will because he had to sell some properties to finance his operation. You can understand the claim of the illegitimate child because it’s practically for the facts with admission to probate of the holographic will. The only thing that stands in his way is the notarial will revoking the holographic will and disinheriting him. But if he is able to have the notarial will denied probate that means the holographic will stand and he gets the estate. That why it very important for them to remove the notarial will.

How did the SC justify that ruling? SC moved beyond the literal words of Art 808 and considered the purpose of the law To protect someone who cannot read his own last will and testament. And the SC recognized that people who cannot read

Oppositors contended that Art 808 was not complied with to letter. How should they have done things? 25

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH The will should be read aloud by the witnesses will by then followed by the notary public.

Remember: Not just because the pages appeared to have been signed by the testator and the witness is not guarantee that the will is complete. That is a guarantee that all the pages are authentic, but it does not preclude the possibility that the will may be missing some pages.

Here, the notary public did not read aloud; the witness did not read aloud; it was Atty Rino read who read the will aloud although all 4 had there own copy and were following by reading silently

When can we say that there is substantial compliance? When do we say that the purpose of the law in requiring the number of pages in attestation clause has also been otherwise achieved? What is the acceptable evidence that there has been substantial compliance with the law? How would the will supply what was needed in the attestation clause? If the will itself provides the answer. We should look at the pagination appearing on the will.

What did the SC say? Was there substantial compliance? Yes, even ordinary persons can see that the purpose of the law has been achieved and even more. st In 1 only 2 read. But in the version they made, 5 people (including Atty Rino) read the will to the testator. So the purpose of the law which to prevent fraud has been achieved. So no need to be technical about the execution.

How is it worded? st 1 : If it is worded page one, page two, page 3 only this will not help. nd 2 : But there are documents were the total number of pages is also indicated – i.e. page one of three pages; page two of six pages. nd If this is the way (2 ) the pagination of the will is worded then you can rest easy and allow the relaxation of the rule under Art 809, because the will itself provides the answer as to how many pages comprise the will. You do not have to look beyond the will itself. The 4 corners of the will provide you with the answer. If it is something that cannot be provided by the will itself, by examining the will itself then the imperfection would be fatal.

What should be contained in the attestation clause? • the number of pages used upon which the will is written • the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, • Witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. st

1 requirement – the number of pages Should the number of pages be omitted in the attestation clause would that be fatal? Although the will is a formal instrument and the formalities must be mandatory to comply with, the law itself recognizes that in the absence of bad faith, forgery, fraud, undue and improper pressure or influence any defect in the language of the attestation clause will not render the will invalid if it is shown that there is substantial compliance with all the requirement in Art 805.

What kind of information required in the attestation clause but not state therein can be considered as one which cannot be provided by the will itself? Remember that there are only 3 things required to be stated in the attestation clause. • number of pages rd • fact that the testator subscribed or caused a 3 person to subscribe the will in the presence of the witnesses • fact that the witnesses attested to subscribe the will in the presence of the testator and of one another

2 twin requirements 1. Absence of bad faith etc. and 2. Showing that there was due execution Remember: If the will is comprised with 10 pages but in the attestation clause the statement of the number of pages is blank/absent the entire will is invalidated (not only the page where the attestation clause appears).

nd

rd

The 2 and 3 requirement, no matter what you do with the will you really cannot determine the manner in which the will was signed by the testator and the witnesses

26

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH CANEDA VS CA Caballero died before the court could rule on the probate of his will. After his death his relatives appeared then they filed a separate proceedings for settlement of the intestate estate of Caballero. And the 2 proceedings were later on joined because testacy is always preferred over intestacy. Before the intestate proceedings will be allowed to prosper it must first be determined whether or not the will executed by Caballero was valid. Because if it was then no need for intestate proceedings anymore.

It indicates that which placed of the said testator in the presence of each and all of us” was meant to refer to the witnesses. Yun nga lang the word “witnesses” was omitted as well as the phrase that should have preceded that word witnesses “the testator signing in the presence of the witnesses and the witnesses signing in the presence of the testator and each one of us.” 3 to 5 words were missing and yet such the omission spelled the difference, because the court was no longer willing accept the will as valid because of this imperfection and formulation of the attestation clause.

There is a will already presented for probate by no less than the testator. Any question regarding its genuineness, authenticity and voluntariness are all moot, because the testator himself ask for the probate of his will.

What happens now to Art 809 which says that in the absence of fraud forgery bad faith you can relax the rule which is applicable in this case. Why is the SC was unwilling to accept the will?

The oppositors has only one option and that is to question the compliance of formal requirements of the law. And they found that opening. They found that there are defects in the language of the attestation clause.

We cannot say that if the attestation clause is not completely reflective of that fact we could removed the possibility that signing was in deed done in the presence of one another, because the attestation clause was merely defective.

What did the attestation say? Focus on the last portion. That is where the imperfection appear. How is that imperfect for purposes of law of wills and successions? Documents did not contain that the witnesses signed the document in the presence of the testator and of one another.

The only point is why was the SC not willing to be liberal about it? We should have specific guidelines. We look to the words of Justice JBL Reyes. We only relax or apply Art 809 if the omission or defect can also be supplied by the will itself. So it is in the pages.

Although you can see that there was an attempt, because in the last portion – the use of the words and in the presence of testator and of one another this still pertain to the witnesses.

In this case, the manner of execution, no matter what you do with the will, can you tell who signed in the presence of who, who signed first who follow? No.

Siguro yung nagtype ng will sa pagmamadali nya naomit nya yung portion that the testator signing in the presence of the of the witnesses and the witnesses signing in the presence of the testator. So several words appeared to have been omitted.

So if it an information the manner of signing that is whether in the presence of one another cannot be supplied by the will itself. In fact that is the purpose of the attestation clause since the will cannot provide you with that information. It is the function of the attestation clause to give you that information.

Kaya kung babasahin nyo and if you would be strict about it – and he has signed the will and every pages thereof in the presence of the said testator. Why would the attestation clause say that, the testator is signing in the presence of the said testator? What does that indicate?

So there are twin requirements • no bad faith etc AND • proof of substantial compliance 27

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH We accept substantial compliance only if the imperfection or omission can be corrected or supplied by examination of the will itself.

Why is it important to pinpoint the date when the will was executed? To determine if the testator was still of sound mind when he made the will.

Article 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

Remember that a Holographic Will is not witnessed. So unlike Notarial Will which has at least 3 witnesses who can say that “Yes. We observed the testator when he was signing the will. He appears to have full possession of his faculties. He appears to be of sound mind.”

What is a holographic will? Will entirely written, dated and signed in the handwriting of the testator.

While in a Holographic Will it is purely the act of the testator. No is supposed to be around when he is executing his Holographic Will. So your only basis that he was of sound mind or not of unsound mind would be the date.

Why did the law allow holographic will (It is quite a contradiction to the need for guarantees to guard against fraud. It can be easily be drawn up by any person)? The probably recognizes that most people are wary of lawyers (like in case of a dentist). Because of this most people choose to die intestate. That is why the law provided them with an easier way of expressing their wishes.

As to the need to pinpoint the day, the month and the year this will not always be true because there are other ways by which you can indicate the specific date when the will was executed even though you did not specified the month and the day.

Where can you make a holographic will? Is there any special paper? Supposing you are imprisoned, no paper can write on the wall? Yes, because the only requirement of the law is that it is entirely written signed and dated by the handwriting of the testator. It does not matter where it is written.

Example: th Christmas day of 1995, 10 wedding anniversary, Valentines Day 2009. st

You cannot say worst day ever of 2006, 1 rd monthsary w/ the 3 BF that is something that cannot be readily calculated or determined by the heirs.

What happens if someone else has written in the will? It depends. If made after the execution it will be disregarded. It will be a mere surplusage. It cannot affect the validity of the will. However if the writing was simultaneous with that of the testator. It will be void, because not entirely written dated and signed by the testator.

ROXAS VS DE JESUS The case captures how the Holographic Will is readily made available. Last will written in a notebook of Viviana. The ground of the oppositors was that the will was not properly dated (Feb. /61)

Is the holographic will required to be witnessed? What happens if there are witnesses? It will not affect the validity of the will.

Was the will properly dated? Objectively speaking that cannot be considered as substantial compliance, because Feb. /61 is too broad. This could anywhere between 1 and 28.

SEANGIO VS REYES The holographic will was actually witnessed by 3 people and yet it would seem that the court took it for granted that the court took them as mere surplusage.

What tilted scales here in favor of the proponent of the will, the children themselves were acknowledging that the will was really is in the handwriting of their mother.

What about the requirement of a date? How should a date be indicated? Ordinarily it includes the date month and year. The purpose here is to specify with accuracy when the will was executed. 28

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH “Toot toot, toot toot”

So what does that imply? You need to take the context of the entire instrument which was done in this case. That is why the date was accepted.

Kaninong celfone un? Next time it will be an act of volunteering

SEANGIO VS REYES The document in question was written in tagalog.

LABRADOR VS CA In this case there was no problem with the date since it was complete w/ the day, month and year. The problem was with the location of the date, because ordinarily when you date a document or informal letter, the date would appear at the top usually at the right hand margin. But this case the date was buried among the provision of the so-called will.

How was it denominated/entitled? Kasulatan ng Pagaalis ng Mana Alfredo, the one who was disinherited opposed. If you will be strict about it you will not consider it as a will but an expression of disinheritance.

Was the land subject of the Holographic Will? How? The land. He gave the land to Sagrado.

In the law if you are going to disinherit it must be contained in a will as just one of the provisions therein.

Because Sagrado was the beneficiary of the land under will he also brought an action to allow the sale made by Melencio in favor of Jesus and Gaudencio.

In this case he went straight to disinheritance per se because the title is Kasulatan ng pagalis ng mana. He made a short cut straight to disiheritance.

The confusion here arose because the will in this case was not a simple document. In fact, there was even a discussion as to its true nature, because some are written in Ilocano, some in English and it had an appearance of a document relating to partition of property.

Holographic Will are usually executed by the testator without the assistance of counsel that’s why this should be liberally construed. SC said if it is a case of Holographic Will we adopt liberal construction that is why even though the document is entitled Kasulatan sa pagalis ng mana, we would accept that as a last will and testament because it otherwise complies to the requirements of Holographic Will.

rd

It is said in 3 paragraph, Melencio said that he was leaving the fish farm to Sagrado and that is where the date appeared. He said at this time and date were the parties agreed to a partition. But the thing is you’re still alive and you cannot effect a partition among your heirs just like that. There are still other formal requirement.

Oppositors where saying that there was no disposition there, but only disinheritance. Disiheritance is in effect a disposition if favor of those if favor of those who would be succeeding in lieu of the disinherited heir.

So the most logical conclusion here is that this is a Holographic Will and the intention is to live behind this portion of land to Sagrado. WILLS8 Was it properly dated? The date here appeared in the paragraph. They said that was not the date of the document that is the date when the partition is supposed to take effect.

Article 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

The court said NO because it has no partition. So we have to take this as the date of the Holographic Will. That does not have to be in its usual place.

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to.

29

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Does the rule contemplated in Art. 811 apply to all kinds of probate? No, it applies only to post-mortem probate and not to ante mortem probate

In Art. 811 we have a mandatory provision in the first paragraph and a permissive provision which is the last paragraph AZAOLA VS SINGSON Comment: If the oppositors claim that the will was procured by undue and improper pressure and influence it means that they concede that the handwriting and the signature are authentic. There is no question of authenticity but only a question of voluntariness. Ruling: even if the authenticity of the holographic will were contested, the provisions in Art. 811 cannot be interpreted as to require the compulsory presentation of 3 witnesses to identify the handwriting of the testator, since no witness may have been present at the execution of a holographic will. The existence of witness possessing the required qualification is a matter beyond the control of the proponent. The point is “the difficulty of finding a witness to testify regarding the due execution of a holographic will in lieu of that fact that a holographic will is not required to be witnessed at all. And the Sc said that this is not the intention of the law to suppress an otherwise valid and authenticate will simply because there is a difficulty in locating witnesses who are familiar with the handwriting and signature of the testator.

Ante-mortem Probate- a probate that is brought during the lifetime of the testator Why does Art. 811 do not apply to Ante-Mortem probate? Because the testator can make his testimony and his testimony is the best proof of the authenticity of the holographic will What should be the qualifications of the witness who shall be called upon to testify in the probate of the holographic will? The witnesses must know the handwriting and signature of the testator, otherwise the witness is not qualified Why does the law require that the witness should know not only the handwriting but also the signature of the testator? In holographic wills, the only guaranty of authenticity will be the authorship of the testator and the basis that it is indeed authored by the testator only 2 things: • Handwriting • Signature In most cases, signature is different from handwriting. Usually a signature is more abbreviated; there is no basis of correlating the handwriting and the signature. There is no assurance that the signature is in the handwriting of the testator.

CODOY VS CALUGAY Comment: The visual appearance of the will itself makes some doubts regarding its authenticity and considering that the will was executed in 1978 and the testator dies on 1990, it is more than a decade. In comparison with the Azaola case, there is no doubt in the authenticity. Ruling: The ponente heart on the mandatory nature of the requirement of the 3 witnesses. The ScC remanded the case to the trial court for further reception of evidence

How many witnesses do we need for a probate of the holographic will? • If the will is not contested - at least one witness • If the will is contested, at least three of such witnesses shall be required. The requirement of the production of 3 witnesses, is it mandatory? In statutory construction, first, we construe using the letters of the law, and then if there is doubt then we refer to jurisprudence. How does the law worded? It make use of the word “shall” which would imply to be mandatory, however, we cannot also ignore the last paragraph of Art. 811. What does the last paragraph says? In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to.

Codoy case does not overrule the ruling in Azaola case. 30

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What happens if the holographic will is lost or destroyed? If there is no other copy of the will then the will can no longer be admitted for probate.

Article 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

Does it the same in case of a Notarial will? No

If there are dispositions after the signature of the testator such disposition will be valid provided that the last disposition is dated and signed. B t it is essential that prior disposition appearing before the last disposition could at least be signed. And the date appearing in the last disposition would be the date of all prior signed but undated dispositions

Why would the presence of the witnesses for a notarial will allow even if such notarial will is lost or destroyed and should be admitted to probate? Why is it that the law allows such witnesses to prove the due and execution upon lost or destroyed of a notarial will? If the holographic will is lost or destroyed, its contents, due execution can longer be prove and it can no longer be admitted for probate. But the same is not true in Notarial will, because in Notarial will even if the copy was lost or destroyed, its due execution can still be proved and this stands for a fact that there are witnesses to the execution of the notarial will, whereas there is none in the holographic will. What is the basis or legal authority for saying that we can actually have a notarial will otherwise its been lost or destroyed, submitted for probate on the strength of testimony of witnesses to effectuate its due execution? If the notarial will is destroyed without the authority of the testator, it may still be be admitted for probate provided that its due execution, contents and that fact of its unauthorized destruction are proven in court through witnesses (Art. 830 par.3)

Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

In a holographic will, the testator may change his mind in his disposition of his property, suppose that the testator change his mind, he would want to alter or modify his holographic will, what should be complied with? The testator must authenticate the same by his full signature. What is your Full signature? Anything except mere initials; it does not necessarily mean the testator’s full name; it rather means his usual and customary signature; supposes full name but excludes mere initials.

GAN VS YAP The holographic will must be presented in court because the document which contains the handwriting and the signature of the testator which is the only guaranty or basis of authenticity of a holographic will. Such will can no longer be submitted for probate unless there is a photostatic copy of the will.

What happens if it is not authenticated by the full signature? • In case of insertion, when there is an insertion and it was not authenticated by the full signature then such insertion will not be given any effect, it will be null and void, but the will itself will remain valid. • If it is a cancellation or erasure, the original text will subsist as if there was no cancellation If what is cancelled is an essential part of the will, then the entire WILL will be rendered null and void.

RODELAS VS ARANZA If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a Photostatic copy of the holographic will may be allowed because comparison can be made with the standards writings of the testator.

Should the alteration affect the date or signature, the validity of the whole will is affected KALAW VS RELOVA The SC cannot ignore the change of intent of the testatrix. The cancellation of the words “my sister Rosa” may be interpreted in 2 ways: • first- it is cancellation under Art. 814, and such was not complied with • second- it may be considered as revocation by cancellation of the will itself. Such revocation need not be authenticated. In this case, what was cancelled was an essential part of the will.

Article 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n)

31

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH

Rules governing the formal validity of wills

Last will and testament of Jeff

If the testator is a Filipino, and the will is executed in the Philippines; it formal validity is governed by the Civil Code

Contents________________________________ ________________________________________ _________________________

Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines.

(Sgd) Jeff

If the testator is a Filipino, and the will is executed in a foreign country, then its formal validity is governed by either: • The law of the place where the will was made (lex loci celebrationis) • By the Civil Code of the Philippines

Last will and testament of Suzanne Contents________________________________ ________________________________________ _________________________________ (Sgd) Suzanne

Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Is the above illustrated will is valid? Yes, because that would be 2 wills appearing in one page, they are made separate wills, not a joint one

If the testator is an alien and the will was executed in the Philippines, then its formal validity is governed either: • By the Civil code of the Philippines • By the law of his nationality or citizenship Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.

Last Will and Testament We, the testators Jeff and Suzanne is disposing________________________________ ________________________________________ _________________

If the testator is an alien and the will is executed in a foreign country, then its formal validity is governed by: • By the law of the place where the will is made • By the law of his nationality or citizenship • By the law of the country where he resides • By the Civil Code of the Philippines

Is the above illustrated will is valid? No, it is a joint will Reciprocal or mutual wills are valid as long as it is not made jointly, even if the same witnesses are used.

Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.

Article 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code.

Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.

Article 821. The following are disqualified from being witnesses to a will:

Joint will- one document executed by 2 testators. The characteristic of a will of being purely personal is violated.

(1) (2)

32

Any person not domiciled in the Philippines; Those who have been convicted of falsification of a document, perjury or false testimony.

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Who are qualified to be a witness of a notarial will? Any person who is: • Of sound mind • At least 18 years of age or above • Must not be blind, deaf or dumb • Must be able to read and write • Must be domiciled in the Philippines • Must not have been convicted of falsification of a document, perjury or false testimony

Can a creditor be disqualified, if the testator’s estate was charge of a debt in favor of the creditor? No, because a creditor is not an heir, he is entitled because unlike an heir, legatee or devisee they are receiving because of the liberality of the testator but in the case of a creditor, he is receiving because of obligation of the testator GONZALES VS CA The rule is that, the instrumental witnesses in order to be competent must be shown to have all the qualifications and none of the disqualifications provided by law; and there is no need for a further proof of their good reputation or good standing in the community because these are presumed.

Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.

When should these qualifications exist? At the time of the execution of the will

WILLS9

What is the effect of lost of any of those qualifications after the execution of the will? It will for affect the validity of the will

Article 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered.

Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.

What is a codicil? A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered.

Can a devisee or legatee act as a witness in a last will and testament? Yes, provided that there are other 3 competent witnesses.

By its nature a codicil is executed subsequent to. It presupposes that a prior will is existing. Can we have a codicil which is prior to a void will? Yes, it is not necessary that the prior will is a valid will.

The fact that they are devisee or legatee, it only has an effect to their capacity to receive under the will but it has no effect at all of the capacity to act as witnesses. This qualification is not only consigned with the witnesses themselves, it also applies to the spouse, parents or children if named as a devisee or legatee.

Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will.

A codicil must be in the same form of a last will and testament. A codicil may either be notarial or holographic.

Purpose of the law for this requirement? To bar against any fraud or undue and improper influence

How do we distinguish a codicil from a will? If a document cannot stand on its own it is a codicil, but if it can independently stand on its own it is a will. And this is true when there are certain dispositions independent from the prior will.

The law does not make mention of the heirs, will this qualification apply to the heirs? Yes, because the qualification is made to apply to all persons who are receiving under the will

The thing is there is also a subsequent will which also refers to a prior will. A subsequent will can also perform the functions of a codicil.

Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will.

33

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH testator and the witnesses affix on each and every page of the document except if the document happens to be voluminous.

Should there be a consistency between the form of our will and the form of the codicil with reference from the will? No, we can a have a notarial codicil with reference to a holographic will or we can have a holographic codicil with reference to a notarial will.

Example: Inventories A person wants to disinherit a grandchild who has been maligning her thru text messages or emails etc… In her will, there is a provision for disinheritance and the testatrix wants to be assured that her charges will be sufficiently proven, so she incorporate by reference the print outs of the email and text messages sent to her by her grandchild who is maligning her.

A codicil will form part as parcel of the prior will Article 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) (2) (3) (4)

The document or paper referred to in the will must be in existence at the time of the execution of the will; The will must clearly describe and identify the same, stating among other things the number of pages thereof; It must be identified by clear and satisfactory proof as the document or paper referred to therein; and It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.

Remember: a document incorporated by reference is different from a codicil. In codicil, it does not matter even if inconsistent in form from the will, that’s why we are allowed to have a notarial codicil with reference to a holographic will. The codicil is subsequent to will but in a document incorporated by reference, the incorporation is done simultaneously with the execution of the will. In holographic wills, it must entirely written, dated and signed by the testator.

Is there an exception to the rule that any document that can be taken as part of the will should always be in the form of a last will and testament? Yes, Doctrine of Incorporation by reference. Such document which is incorporated by reference is not a codicil because the law requires that such document must be inexistence at the time of the execution of the will as compare to a codicil which is executed subsequently to a prior will.

Can we also incorporate an extrinsic document in a holographic will under the doctrine of incorporation by reference? No, because the requisite for the doctrine of incorporation by reference to apply that the extrinsic document should be signed by the testator and witnesses. The requirement itself presupposes or assumes that there are witnesses to the execution of the will, which will us into the conclusion that the legislators intendedly made it to apply solely to a notarial will.

What are the requisites of the Doctrine of Incorporation by reference? • The document referred to in the will must be in existence at the time of the execution of the will • The will must be clearly describe and identify the same, stating among other things the number of pages thereof • It must be identified by clear and satisfactory proof as the document referred to therein • It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of accounts or inventories

Article 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.

What do we mean by ambulatory? It is revocable at any time for any reason or for no reason at all

From the requirements, how many must be found in the will itself? • Clear reference to the document in the will • The document must be clearly identified in the will • The number of pages thereof should also be indicated

Can a testator provide in his will that his will is irrevocable? No, because one of the characteristics of a will is ambulatory and voluntary character of the last will and testament

Outside of the will, we are required to have sufficient proof identifying the document as that referred to and describe in the will. What such proof would be is the signature of

This characteristic of a last will and testament, can it be bargain away or disposed of by the testator even if he is given sufficient consideration? 34

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH No, because of the nature of a last will and testament, if the testator is prevented from doing so, it will violate the ambulatory nature of a last will and testament.




in accordance with the law of the place in which the testator had his domicile at that time

The testator can revoked a will at any time and for any reason or even for no reason at all because a Will will not be operative until the death of the testator, In fact, when we revoke a will we put an end to or terminate is its potential existence.

What must be present when a testator revokes a will? Is there any need for testamentary capacity to be present? Yes, but not in all instances. Testamentary capacity and animus revocandi is immaterial in a revocation by implication of law.

What is revocation? The act of the mind terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward and visible act or sign by the testator.

Article 830. No will shall be revoked except in the following cases: (1) (2) (3)

Article 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.

What law governs revocation? Qualify as to the person revoking and to the place where it is revoked. The law that will govern the revocation is made and secondarily, on whether the person revoking is domiciled in the Philippines or not. • If the revocation is made in the Philippines, the provisions of the Civil Code will control regardless of who is the testator or where the will is executed. • If the revocation is made outside of the Philippines then a distinction is to be made whether the person is domiciled in the Philippines or not. o If domiciled in the Philippines,
the provisions of the Civil Code will govern he revocation or
in accordance with Art. 17 (lex loci celebrationis), the law of the place where the revocation is made o But if the testator is domiciled abroad, then he is given the discretion to revoke the will either in accordance with the
law of the place where the will was made or

By implication of law; or By some will, codicil, or other writing executed as provided in case of wills; or By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.

What are the different ways in revoking a will? (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. Revocation by implication of law In this kind of revocation, testamentary capacity and animus revocandi is immaterial. In fact, this kind of revocation takes place independently on the will of the testator Why would there be a revocation by implication of law in case of preterition? There would be a revocation of a will by implication of law in case of preterition if the heir instituted would no longer be entitled to received, this development amounts to revocation of the inheritance in his favor. Only the revocation is not done by the testator himself but it is done by law. 35

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH provisions can no longer reconcile, that is the time we can say that there is revocation by implication

Why is it the law carrying out such revocation? The law put into effect a revocation by implication of law because it recognizes the change in the circumstances of the testator. In preterition, we assume that the omission is unintentional.

If the revocation is implied, is it possible to have a partial or total revocation? Yes, if the will only contain a single disposition

Guilty spouse in a Legal Separation Art. 63, par. 4 Family Code

Example: “im giving the sole ownership of my entire estate to A” – prior will “im giving the sole ownership of my entire estate to B” – subsequent will

Any disposition in favor of the guilty spouse is deemed revoke by operation of law. The law presumes that the development has taken place between spouses for example the wife has another man not his husband, the law presumes that the testator would no longer want her to benefit from his estate, so that even if he does not disinherit the guilty spouse, the law itself disqualifies any disposition in favor of the guilty spouse deemed revoked by operation of law, a recognition of the circumstances

The example given is an example of total revocation because both dispositions cannot be reconciled Example: “I’m giving my house and lot and my racing horse named the lucky one to A” – prior will “I’m giving and sole ownership of my racing horse named the lucky one to B “–subsequent will

Commission by an heir, devisee or legatee of an act of unworthiness

The example given is only a partial revocation because the 2 dispositions can be reconciled

Subsequent adoption of the legatees by the testator annuls the distribution in the will

Supposing in a subsequent will, where the inconsistent provision is found or where the revocatory clause is found was not admitted to probate, what happens to the revocatory clause or in the inconsistent dispositions? There will no valid revocation, because that is the requirement of the law. Since it is a formal instrument, non-compliance with the requisites means there is no valid will or codicil.

The alteration, alienation or loss of things given as a legacy or devise after the execution of the will Revocation by subsequent will, codicil or writing: requisites: • The testator must have the capacity to revoke • The revoking will must be a valid will • The revoking will must contain a revocatory clause or the disposition must be incompatible with the prior will • The revoking will must be admitted to probate

Revocation thru Physical destruction: requisites: • Testamentary capacity • Animus revocandi • Actual physical destruction

If we are revoking thru a subsequent will or codicil, to what extent can the revocation be effected? Either partially or totally Partial revocation- the will in its entirety is not being revoked only a portions thereof, so that part of the prior will may still subsist and given effect Total revocation- the will in its entirely will no longer be given effect

Is it required that the testator should be the one to carry out the physical destruction? No, the testator can act thru an agent provided that the agent was authorize by the testator and the destruction was done in the presence of the testator What kind of revocation can be effected thru physical destruction in terms of extent? Depends on how practical it is to effect a partial revocation thru physical destruction. In burning, if the testator wanted to burn only certain dispositions, he might burn the entire document, so for burning for practical consideration we are limited to total revocation.

Manner of revocation • Express- revocatory clause • Implied- not favored; whenever we have inconsistent provision in a will or in several wills, our goal is always to try to give effect to all of the provisions, we try to harmonize. Only when the 36

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Burning

But if the example is in this manner, that the father tore the will in 2 and throws it away into the waste basket and then gets out of the room, then he misses his daughter and reaps the pieces from the waste basket, can there be a valid desistance? Not anymore, because the moment he threw a will into a waste basket and left the room it implies that to him (father) the revocation was already complete. Even if the father cut the will at the tip and throws it away the revocation is complete. We have to consider the circumstances.

Setting the will on fire, we don’t have to burn the entire will as long as there is a proof of burning is sufficient. Tearing Cutting or Reaping it into pieces Obliterating May be the same as cancelling although obliterating indicates a more intensive way of cancelling, there is blotting out of the portions.

The problem is in revocation by physical destruction, we do not have proof.

What would be the extent of the destruction? The extent really does not matter for as long as it is consistent with manifested animus revocandi.

If the testator is revoking his prior will that means he is being moved by a very grave reason. There is a change of mind, there might be anger, disappointment etc…. if that is the situation that he found himself in, would the testator gather his relatives around and revoke it in front of them? No, most likely the revocation is done secretly.

The problem arises if there is some kind of desistance on the part of the testator before there is a complete destruction of the document.. What if in the middle of destruction, the testator desist, what will happen? 2 phases of destruction • Objective phase • Subjective phase

How do we prove revocation knowing that there are no witnesses, no proof because the law does not require… that’s why the Supreme Court has said that some kind of presumption must be made.

What should pass the subjective phase? How should it pass the subjective phase? When there is nothing left for the testator to do, it is already in the subjective phase

GAGO VS MAMUYAC What is the presumption that we must make regarding revocation? If before the death of the testator the will was known to be in his possession or at least he has access to the will and then after his death the will can no longer be located despite by the efforts exerted, then we are forced to presume that the will has been destroyed and it was the testator who destroyed the will. The court said that this was this so, because the law itself does not require that proof of the revocation be preserved.

Here, we are not equating completeness of the act with completeness of the destruction. It is possible that we don’t have a complete destruction and yet we already have a valid revocation. E.G. A father tore his will in front of his daughter, if after tearing into 2 halves, he was about to tear it into 4 parts, he desisted because the daughter ask for forgiveness.

Situation: 3 copies of the will, one with the testator, one with the spouse and one with the family lawyer. The testator destroyed his copy, there is animus revocandi and physical destruction therefore the will is revoke.

In this example, there is no doubt that the will is indeed physically destroyed, as we apply our discussion, the act done by the testator tells us that there is revocation but this time around we can that there is no really revocation; there can still be a valid desistance to prevent a revocation. We can incur from the acts of the father in beginning to tear it again that as to it, with regard to him (father) the physical destruction was not yet complete, the intention of the father, in his mind, (remember: revocation is an act of the mind) it (Will) will be revoked after he had tore it into so many pieces. He visualizes, let say, 32 pieces; but when he is about to tear it into 4 parts, he desisted, so that means he desisted before revocation is complete in his mind in accordance with his intention.

What about the copies with the spouse and the family lawyer? It is also revoked because the testator needs not to recall all the copies from his spouse and family lawyer, it is enough for us to presume that the testator revoked his will by physical destruction if the copy in his possession or a copy he had access to can no longer be located. If the spouse and the 37

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH family lawyer wanted to prove the disprove revocation then the burden is upon them.

lawyer one day. And he wants to be assured that his heirs will be given a share, let say the heirs will be all of his classmates in 3-A. now then, tine had passed, Mr. Valdez thought now that his last will and testament when he was 22 years of age does not reflect of his current state of mind. So he decide to revoke his last will and testament, but he said just incase he will have a new last will and testament that will not be effective then he would rather have to have his last will and testament when he was 22 years old (he will settle for his first will instead of nothing). So meaning that the revocation that he is making is not absolute in the sense that he wants to make it dependent on the efficacy of a subsequent will, it is conditional. Why is it conditional? Because he does not want to without a will at all cost.

If the testator would not able to destroy the will because of the interference of another person, would there be a revocation? None, because there should be physical destruction. Conversely, even if the will has been totally destroyed but it was not destroyed by the testator himself or he did not intend to revoke it by physical destruction, what happens to the will? it is not revoked, it remains valid But what if that it is the only copy of the will? It depends, if it is a holographic will, then the will can no longer be probated because there can be no other proof of its authenticity and due execution, but if it is a notarial will, the will can still be probated but there should be a proof of due execution, the contents of the will and the fact of its unauthorized destruction.

When do we apply the doctrine? For the doctrine to apply, we cannot have just 2 wills, we cannot have our revoking will and our replacing will in the same document because if the subsequent will at the same time it is also your replacement will was not admitted for probate, there is no doubt that the prior will subsist, it will not be considered revoked. But not because of the application of the doctrine, but simply because of non-compliance of the requisite of revocation by a subsequent will. Our revoking will should be that a revoking will and then we have a third will and our third will is the replacement will which will replace the prior will. So rd that if in the future, this 3 will does not pass probate then we can by applying the doctrine of dependent relative revocation says that the prior will which has been previously revoked should be restated to validity because the revocation was rd dependent from the efficacy of our 3 will, it is only conditional.

When it comes to revocation by physical destruction, it is possible that the destruction may be carried out by a third person for the testator. What are the requirements? • That the testator authorized such third person • the destruction was done in his presence If such requirements are not met then there is no valid revocation. MALOTO VS COURT OF APPEALS Revocation by physical destruction, it is possible that the destruction may be carried out by a third person for the testator it is required that the testator authorized such third person and the destruction was done in his presence. It is essential that in revocation by physical destruction there must be animus revocandi and physical act of destruction, absence of one there will be no valid revocation. What is the doctrine of Dependent Relative Revocation? The law recognizes that it is possible that the testator does not want to die intestate at all cost. So that should he even revoked a prior will, the revocation may be made dependent upon the efficacy of a subsequent will. But we do not make an inference that it is such an intention. E.G Mr. Valdez made a will on the age of 22, because he has a feeling that he would become a big time 38

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH

Prior Will /First Will Revoked

Revoking will which contains an EXPRESS INTENTION that the testator is revoking the Prior Will, but with an intention to make a new and subsequent will that will replace a prior will. So that if the subsequent will does not pass probate or does not become effective, then the prior will should be considered as not revoked

Replacement will / Subsequent will/third will

The Doctrine will be confusing if the revocation is not EXPRESSLY done but thru PHYSICAL DESTRUCTION. It will not be confusing if there is an express intention of the testator to make the revocation depend on the efficacy of the subsequent will intended to replace a prior will. If the situation is there is PHYSICAL DESTRUCTION WITH NO MANIFEST INTENT, then we will refer to the case of MOLO vs MOLO.

39

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH WILLS10

Furthermore, even if the will has been revoked, the instrument within the meaning of Article 278 of the Civil Code- which states that recognition of natural children shall be made in the record of birth, or in a will, or in a statement before a court record, or in an authentic writing.

Under this doctrine a revocation of a will not be given any effect if there is a present intention on the part of the testator to make that revocation contingent upon the effectivity of a subsequent will.

Article 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form.

Stripping all the legal doctrines, it boils down to a conditional revocation.

Article 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.

And what is the condition? The intention to make the revocation dependent upon the effectivity of a subsequent will.

Republication- the method by which the testator restores to validity, as his will, an instrument formerly executed by him as his will thereafter revoked or gives validity to an instrument originally invalid for want of proper execution. Restoring a will to validity.

The problem is, it is not always clear when is that intention is present. It is not as though the testator will have always the opportunity to announce what is intention is, can be it revoking.

Republication • Express o Re-execution • Implied o Constructive o Reference

In Molo vs Molo. The revocation was done thru physical means, the interval between the first will and second will is 20 years apart. The revoking will was denied probate, by all indication the first will should have subsisted. However, there was an insinuation that the original copy of the first will was destroyed by the testator. It indicated that the revocation is supposed to have taken place thru another means other than by the execution of a subsequent will. It is thru physical destruction. The original copy cannot be located. What was presented in probate was a carbon copy of the original. We had a presumption that if the testator have access or possession of the will and cannot be located after his death, we presume that he had revoked it. But the doctrine of relative revocation is applicable because the SC cited the fact that the 2 wills name the same beneficiary. The 2 wills are basically the same. And the SC also said that had it been the intention of the testator to absolutely revoke his first will then he should have also recovered the carbon copy in the possession of his wife. The mere fact that he did not do so means that he was still trying to ensure that he would die testate or with a valid will. Just in case his subsequent will and testament will not be admitted to probate.

If the will, however, has been previously revoked but valid as to form, or void because of some other cause, it may be republished through execution of a codicil containing sufficient reference to a prior will. Republication by reference- the execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil as of the date of the republishing codicil. It is express republication, if the testator reproduces in a subsequent will, then dispositions contained in a previous will which is void as to its form. (art. 835) It is constructive republication, if the testator for some reason or another executes a codicil to his will. (art. 836)

Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.

Under Art. 836, intrinsic defect of the will are cured by mere referral to the codicil.

The recognition of an illegitimate child does not lose its legal effect even though the will wherein it was made should be revoked because recognition is not a testamentary disposition and hence it takes effect upon the execution of the will and not upon the death of the testator. This rule however, is not applicable where the will is refused probate on the ground of vitiation of consent, since in that case there would be no valid recognition.

How do we restore a will? • By reference • By republication of the entire will in a new will or codicil General Rule: it is enough that we make reference to the will. Exception: However if the prior will is suffering from

40

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH infirmities as to form, then we have no option but to republish the same in a codicil or a subsequent will.

provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern.

Republication would mean re-execution of the will which is null and void as to form.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.

Article 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil.

What is probate? It is a proceeding in rem for the purpose of establishing the due execution or authenticity of a last will and testament.

Revival- the restoration to validity by operation of law of a will previously revoked. There are 3 wills in revival If a first will is expressly revoked by a second will, the revocation of the second will does not revive the first will and, the first will can only be revived by the execution of another will or codicil, in other words, by republication, either expressly or impliedly

Is probate mandatory? Yes, it cannot be dispense with by the heirs of the decedent because this is the final safeguard that is provided for by law to see to it that the wishes of the testator are not suppressed. Even if the heirs agreed that they will partition the estate among themselves, they cannot do so until they present the will to probate.

If a first will is impliedly revoked by a second will, the revocation of the second Will does revive the first will because on the fact that the execution of a second will which does not expressly revoke the first will but merely contains inconsistent provisions, will only be considered a revocation of the prior will when the testator dies because the intent to revoke being purely testamentary in character can have no effect until the death of the testator.

How many kinds of probate do we have? 2 kinds o Post-mortem- made after death o Ante-mortem- it allows the testator to petition to the court to allow to probate his own last will and testament

Why is that so? According to Senator Tolentino, if there is a provision of express revocation in a last will and testament that provision of express revocation is given an instantaneous effect. There is no need for the will to be admitted to probate. On the theory that the revocatory clause is not a disposition, that will only take effect upon the death of the testator. So that if there is a revocatory clause, it is immediately given effect.

What is the participation of the testator in a post-mortem probate? None, because he is already dead. In ante-mortem probate- There can be no other better witness regarding the authenticity or due execution of the last will and testament that the testator himself Which court has jurisdiction over a petition for probate? Regional trial court for being a court of general jurisdiction

But there is a problem, what happens now with the requirement of that law which says “to constitute a valid revocation thru a subsequent will or codicil, the revoking will must be admitted to probate”

With regard to venue? Last place of residence of the testator

The only thing that we can reconcile that requirement with the instantaneous effect given to the revocatory clause would be the admission to probate or non-admission to probate would be some kind of a resolutory condition.

What if he is not a resident prior to his death? It shall be the place where his property is located A probate is a proceeding with limited jurisdiction, there only certain things that can be pass upon by the probate court. It can only pass upon the issues relating to the extrinsic validity of the last will and testament.

Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent 41

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH omission on her part, she did not present the will for probate. She made a selective use of the last will and testament. The SC says that her theory is untenable because she is circumventing the law, she cannot present the last will and testament for the purposes of proving her conclusion and at the same time suppressing it by not presenting it for probate.

What happens if any issue relating to ownership of the property or in the estate is made, can the probate court make an exception of the rule? No, it is outside of its jurisdiction What is the effect if a will was not admitted to probate? The will will not have any effect. If the testator executed only one will, then it will be considered that he had died intestate.

She was also invoking the rules of court that there was an implication that even there is a last will and testament; it is possible for the heirs to just settle among themselves provided that the conditions are satisfied. But the Sc said, she cannot invoke such provision in the rules of court because probate is mandatory, probate cannot be dispense with.

How many wills can be submitted to probate? As many as the testator may have set excluding those which had been expressly revoked because of the instantaneous effect we give to the revocatory clause.

Probate is mandatory and its allowance by the court is essential and indispensable to its efficacy

Article 839. The will shall be disallowed in any of the following cases: (1) (2) (3) (4) (5)

(6)

If the formalities required by law have not been complied with; If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; If it was executed through force or under duress, or the influence of fear, or threats; If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; If the signature of the testator was procured by fraud; If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

DELA CERNA VS POTOT In this case we have a joint will, a joint will under Philippine law is null and void. However, when it was submitted for probate prior the death of the husband who is one of the parties in the joint will by some kind of miracle such joint will was submitted to probate. The intestate heirs of the husband did not appeal from the judgment allowing the last will and testament of the husband to probate.

Undue influence- is some kind of an emotional black mail but without an intimidation, duress or force.

When the wife died, they (intestate heirs of the husband) thought that they had another opportunity to attack the validity of the will in so far as the husband was concerned because there was another probate proceeding and the reason why there is another probate proceeding because the first probate was instituted in 1939 prior to the effectivity of the New Civil Code and prior to the introduction of the concept of ante-mortem probate.

Supposing that the will is admitted to probate, what will be the effect of such admission to probate? The judgment admitting it to probate attains finality if there is no appeal taken then the judgment will be conclusive with regard to its due execution and authencity. Due execution- voluntariness Authenticity- negates any possibility of fraud

There is no question that the judgment annulling the last will and testament of the husband is wrong. But even there is an error of law in the judgment, it can longer be questioned that judgment if the same attained finality. Even if the judgment allowing the will for probate is erroneous and attained finality then for all intent and purposes, the due execution, validity, authenticity or voluntariness of the last will and testament it is established beyond reproached, it can longer be questioned.

Cases GUEVARRA VS GUEVARRA There is an action for recovery of her legitime as an acknowledge natural child and her evidence was the last will and testament. The problem with her theory is her cause of action is premised on her application of the law on intestate succession and her proof is the last will and testament of the testator which would have been triggered testamentary succession. So there is a disconnect between her cause of action and her proof, her proof establishes a very grave

In this case, although the intestate heirs of the husband would have wanted to overturn the decree 42

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH of probate, they were no longer allow to do so by the court.

Given the general rule, the court is not powerless to do what the situation contrains it to do and pass upon certain provisions of the will. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated the court should meet the issue. Since the intrinsic invalidity is apparent on the face of the will, the SC declared that the disposition in favor of Sofia is null and void.

The final decree decree of probate of 1939 has conclusive effect as to his last will and testament, despite the fact that even then the civil code already decreed the invalidity of joint wills GALLANOSA VS ARCANGEL Florentino left a will were he named his wife Tecla as his heir but he provide that if Tecla predeceased him then the share of the estate would go to his son.

Institution of Heirs Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations.

The will was submitted for probate and Leon did not appeal.

What is an act of instituting an heir? The institution of heir is an act whereby the testator name a person or persons who shall succeed to his properties and his transmissible rights and obligations.

7 years after they file an action for recovery alleging the ownership of the 61 parcels of land such action was denied. 17 years after when the will was admitted to probate, they filed a new action for annulment of the last will and testament on the ground that there was undue influence but there is no such thing as annulment of a last will and testament. It is either the will is valid and be admitted to probate or it is invalid and should not be admitted to probate.

Article 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid.

The decree of probate is conclusive as the due execution or the formal validity of the will, the issue of voluntariness cannot be questioned anymore.

How do we institute an heir? The most ideal way is to give the complete name of the person. First name and surname. If possible also give the middle initial.

Under the submission for probate the court can only pass upon the extrinsic validity, the court cannot pass upon the intrinsic validity but there is an exception as discuss in the case of nepomuceno vs ca

Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted.

NEPOMUCENO VS CA Martin Jugo made a last will and testament. In such last will and testament, he rightfully acknowledge his wife Rufina and their 2 children. However, Martin also declared that he and his wife is separated and he had another wife (paramour) named Sofia. In the will she made Sofia as her executrix.

If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir.

But supposing the testator failed to do so, supposing the testator only made use of the nickname of the person “I’m giving to baby, boy, june.” Would that mean that the institution would be invalid? Not necessarily, if there can be some other circumstance. Remember the discussion on latent ambiguity. We can still make use of extrinsic evidence excluding oral testimony of a person.

Sofia submitted the will to probate and generally what would have the court passed upon is the extrinsic validity of the will. The SC declared the provision in favor of Sofia was null and void in accordance with article 739

If the testator would name a certain Madeline Montesa as his heir, and it turned out that there is 2 Madeline Montesa, one is a close friend and the other is a sworn enemy. Do we annul 43

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH the institution on the ground that we cannot determine on which of the two is the intended heir? No, we can consider the extrinsic evidence among those women will inherit. Of course in that case it is the close friend.

Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise.

Let say the testator gives his house and lot to his cousin Jerry, the problem is he has 2 cousins named Jerry. There is no other circumstance that we can determine the intention of the testator, then we will be force to annul the institution because there is no other circumstance by which we can determine who is the intended heir.

What if some of the heirs are instituted individually and some are collectively? How do we treat those collectively instituted? We treat them as also individually instituted. Example: “I hereby give my estate to A, B, and Children of C namely D, E, F and G” X - testator A – Heir B – Heir Children of C – heirs • D • E Children of C (collectively instituted) • F • G

There is no need, although this is ideal, to name with a specific details the heir intended by the testator. We cannot annul the institution on the ground alone that he is not named by his full name, if there is some other circumstance that will allow us to determine his identity. Although this topic is about institution of heirs, we should also apply this to devisees and legatees on the premise that just like heirs, they receive under the last will and testament executed by the testator.

Shares: A – 1/6 B – 1/6 D – 1/6 E – 1/6 F – 1/6 G – 1/6

Article 846. Heirs instituted without designation of shares shall inherit in equal parts. Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears.

How many heirs can the testator can institute? There is no specific number, the testator can institute 1, he can institute more 1.

Children of C

Article 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively.

Supposing the people instituted is C and his Children. The children of C are D, E and F. how are they going to succeed to the estate? In the natural course of thing, parents died ahead of their children. Are they to succeed successively? No, the presumption is they are intended to succeed simultaneously. So C together with his children will be succeeding will be succeeding to the inheritance upon the death of the testator.

But if he institute more than one, what is the presumption regarding there sharing? The presumption is they are to take equally, and such presumption even applies to the institution of siblings both full blood and half blood. This is what differs testate succession from intestate succession. In intestate succession, the siblings of the half blood will inherit together with the siblings of the full blood, but under the law of intestate succession, the siblings of the full blood will take as twice as much as the siblings of the half-blood. However this will not apply in testate succession.

Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

Example: Ms. Montesa is a sister of the full blood of Ms. Aguirre and Mr. Flojo is a brother of a half blood of Ms. Aguirre. Ms. Aguirre instituted them under her last will and testament, then the shares of Ms. Montesa and Mr. Flojo would be the same. It will be equal unless the testatrix otherwise provides.

In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs.

Is the testator required to dispose all of his estate? No, he is not 44

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Can he be forced to institute an heir? No, in Roman Law if a person died without an heir, it is consider as a dishonor. But such is not applicable in our time.

2.

Such estate is automatically divided into 2, if the testator have a compulsory heirs in the direct line or if he has a spouse.

The legitime of ½, this is inferred to the testator’s legitimate children and descendants or in the absence of the legitimate children or descendants, then the testator’s legitimate parents and ascendants.

If the testator died without instituting an heir, does that means that the testator died without a will? No, because the testator can make a will without instituting an heir but such provides a testamentary disposition. What is that testamentary disposition? The devisees or legatees, so a testator can have a will not to have an heir but can have a testamentary disposition in the form of devisee and legatee and such will will still be valid. The only requirement in a valid last will and testament is there should be a testamentary disposition, it is not required to have an heir.

Free portion

Such free portion is not strictly free for disposition, why not? Because if the testator happens to have a spouse and the testator happens to have an illegitimate children, the law provides that their legitime when they concur with legitimate children or legitimate parents must be taken out of the free portion.

Freedom of disposition, how free is the testator to take disposition? It depends on the presence of compulsory heirs. The testator can have complete discretion and limited power of disposition because if the testator have compulsory heirs or forced heirs then the testator can only dispose the free portion of his estate. Is the free portion fixed? No, it is not, it’s extent or the existence of the free portion depends on the kind of compulsory heirs that the testator have and the number of compulsory heirs that the testator have.

Legitime of legitimate children

¼ is for the spouse, assuming that there is only one legitimate child

Share of the illegitimate child, ½ of the share of the legitimate child

Illustration: 1.

The circle is the whole estate The law provides that the legitime of the spouse will have to be satisfied ahead of the legitime of the illegitimate children. In such illustration, what happens to the disposition in the will? What will the voluntary heirs get? Nothing. Supposing the testator made more that one heir, and his intention is to name them as heir to the entire estate. In the absence of designation or specification of portion the presumption is everyone will be getting an equal share. X – testator A – Heir – 1/3 B – Heir – 1/3 C – Heir – 1/3 45

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH inheritance, or the whole free portion, each part shall be increased proportionally.

Supposing the sharing is:

This is a different topic- what if the testator intended to dispose his entire estate to A, B and C but he is not good in Arithmetic, he disposed his property A- 1/3, B- 1/6 and C- 1/6, what happened now in the undisposed portion of 1/3?

X – testator A – Heir – 1/3 B – Heir – 1/6 C – Heir – 1/6

X – testator

Procedure: Find the least common multiple (LCM) LCM = 6 1

2 =

3

6 - LCM

1

1

A – Heir – 1/3 B – Heir – 1/6 C – Heir – 1/6

Getting the numerator

Entire estate disposed of

6÷3=2

2/6 + 1/6 + 1/6 = 4/6 or 2/3 Remaining portion that is undisposed = 1/3

= 6

6 - LCM

1

In this situation we cannot stop to that 2/3 of the estate because there is an intention of the testator to give the entire estate to A, B and C.

6÷6=1

1 =

6

6 - LCM

What do we do? We increase the share of the heirs

6÷6=1

What kind of increase? Proportionate

Entire estate disposed of

Remember- we only increase if there is a clear intention to give the entire estate to A, B and C and the aliquot part given to them do not add up to 1 whole.

2/6 + 1/6 + 1/6 = 4/6 or 2/3 Remaining portion that is undisposed = 1/3

X – testator A – Heir – 1/3 B – Heir – 1/6 C – Heir – 1/6

Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate.

Entire estate disposed of

The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance.

2/6 + 1/6 + 1/6 = 4/6 or 2/3

Can the testator do that? Yes

Remaining portion that is undisposed = 1/3 Entire estate amounted to Php 150,000.00

What happens to the undisposed portion? Such will be govern by intestate succession

A– 1/3 = Php 50,000.00 B– 1/6 = Php 25,000.00 C– 1/6 = Php 25,000.00 Total = Php 100,000.00 (estate disposed of)

Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole

Remaining portion undisposed = Php 50,000.00 46

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH So the added share to A, B and C is What are we going to do with the remaining Php 50,000.00? Divide such among A, B and C, proportionately

A – Php 25,000.00 B – Php 12,500.00 C – Php 12,500.00

Procedure: 1

2 =

3

6 - LCM

1

1 =

6

6 - LCM

1

1 =

6

6 - LCM

Proportion: getting the denominator- add the numerators 2+1+1=4

The proportion will be: 2:1:1 4

The sharing will be: 2:1:1

2

1

1

4

4

4

= 4

So: Remaining portion = Php 50,000.00 2/4 or ½ multiply by Php 50,000.00 = ¼ multiply by Php 50,000.00 = ¼ multiply by Php 50,000.00 =

Php 25,000.00 Php 12,500.00 Php 12,500.00

47

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH •

WILLS11 Not every instance would there is a leftover in the estate or with some portion of the estate is not disposed of do we automatically increase, only when there is manifest intention to make the heirs succeed to the entire estate.

Institution would not have been made had the testator knew the falsity of the cause.

Of these 3 elements which would prove to be the most crucial? The cause should be expressed in the will itself.

Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally.

As stated before there is no need for the testator to provide his reason for making the institution. If he does not say what his reason is then no amount of claim that such a reason which happen to be false it will not have any effect. This is because you do not have any basis to say that that is precisely his reason for making the institution and the only susceptible way is to read the will itself. So if it is not in the will we cannot begin to discuss falsity of cause. Because nd if it is otherwise then you are 2 guessing the testator. If you have no certainty as to his reason for making the institution then with less reason that you can be certain that this reason nd is false. You cannot 2 guess the person who is already dead and cannot refute you.

Reduction This happens if the proportion exceeds the entire estate The testator instituted A and B as heirs. A is to get 3/4 while B is to get 1/3. The entire estate is P312 M. What are the total shares to be received by A and B in pesos? A - 3/4 *312 M = 234 M B - 1/3 * 312 M = 104 M 234 M + 104 M = 338 M (greater than the entire estate)

Example where you can apply the provision of falsity of the cause of institution of an heir that even in the absence of express and lengthy explanation how else could we come to the conclusion that had he know the falsity of the cause testator would not have made the institution. How should the institution be made? “I institute B as my heir because he saved my son’s life.”

338 M – 312 M = 26 M A – 3/4 = 9/12 B – 1/3 = 4/12 9 + 4 = 13 (new denominator to get the proportion) A – 9/13 x 26 M = 18 M B – 4/13 x 26 M = 8 M

If it is later on shown that B did not really save the life of the testator’s son would this be sufficient to annul the institution rd of B as heir? How will the 3 element apply? If there is no tie, friendship, even an acquaintance between the testator and B. If B was a total stranger to the testator so that he will not have any reason to make B his heir then we can conclude that had the testator knew the falsity of the cause he would not have made the institution.

Share to be received by: 1) A – 234 M – 18 M = Php 216M 2) B – 104 M – 8 M = Php 96M To Check if the computation is correct - 216M + 96M = 312M Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.

Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.

Is there a need for the testator to state the reason for instituting a person as his heirs? No. You can simply say I institute Ronald Valdez as heir. (No reason at all is given.)

A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.

What is the Right of Representation? When do we apply the provision on Falsity of the Cause of Institution? • there is express mention of the reason/cause of the institution; • the reason stated must be false; and

If a voluntary heir dies before the testator, does he transmit any right to his own heirs? No. You cannot transmit what you do not have. 48

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH If a voluntary heir dies before the testator what does that mean/signify? He loses capacity to inherit. Dying ahead of the testator is only one of the ways of losing ones capacity to inherit. There are other ways.

respect to compulsory heir but not when it comes to in to intestate heir. So there is right of representation in compulsory succession on the grounds of predecease, incapacity, or disinheritance. In intestate succession there is right of representation only in the grounds of predecease and incapacity.

A voluntary heir who dies ahead of the testator or who otherwise is incapacitated shall not transmit anything to his own heirs.

But for both there is no right of representation in case of repudiation (the refusal to accept the inheritance).

Is this principle applicable to a compulsory heir or an intestate heir? Yes. Compulsory heir and intestate heir do not also transmit anything because he cannot transmit what he does not have.

What happens to the inheritance if there is repudiation? It still goes to the heir of the repudiating compulsory or intestate heir but only this time they are inheriting in their own right (no longer through right of representation).

What does the right of representation do? Does it allow the compulsory heirs or intestate heirs to transmit what he would have received to his heirs? Just like a voluntary heir, a compulsory heir and an Intestate heir who dies ahead of the testator or otherwise incapacitated, repudiated his inheritance or disinherited will not transmit what he would have received from the testator to his own children because of the principle that he cannot transfer what he does not have.

Is there right of representation when it comes to voluntary succession? None. However voluntary succession has a counterpart for such right. This is through substitution. Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

However in compulsory succession and intestate succession despite the lack of transmission of rights, the heirs of the compulsory heir and intestate heir, may still be able to inherit what the compulsory heir or intestate heir would have inherited through the right of representation.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation

What is preterition? The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

This right of representation is not an exception to the rule of no transmission because the children of the compulsory/intestate heir are inheriting directly from the testator or the decedent, not from the compulsory heir who predeceased, was disinherited or was otherwise incapacitated. This also true with the children of the intestate heirs, they are also not inheriting from the intestate heir who has predeceased or was otherwise incapacitated.

If omitted compulsory heir should die before the testator, the institution shall be effectual without prejudice to the right of representation.

The effect of the right of representation is to elevate them to the level of the compulsory or intestate heir who cannot succeed. They are representing the compulsory or intestate heir but they are not inheriting from them.

If there is an omission what could possibly take place before the testator which could also prevent preterition from occurring? If omitted compulsory heir should die before the testator, the institution shall be effectual without prejudice to the right of representation.

What are the differences between the right of representation of the children or heir of the compulsory heir’s and the children or heir of the intestate heir? In compulsory succession we have a peculiar ground which is only available in such case. This is disinheritance. You only speak of disinheritance with 49

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Who are the compulsory heirs in the direct line? • Legitimate children (this includes adopted children because they are elevated to the same status) and descendants (anyone after children these are the grand children, great grand children etc…) • parents and ascendants (grandparents, great grandparents) • Illegitimate children

This is what is meant by “without prejudice to the right of representation.” Because the right of representation if applicable will elevate the compulsory heir who becomes the real compulsory heir whose omission may trigger preterition. So if B dies your attention should now be focused on the grandchild. Because the grandchild who has the right of representation now becomes the real compulsory heir. You have to determine whether the grandchild was also omitted in the will. If he was omitted then the institution in the will is to be annulled but if not, the institution will be given effect. Subject to his right to the completion of his legitime.

Always remember that the omitted heir should be the real compulsory heir. This means the one who stands to inherit. The real compulsory heir is the one who is 1st entitled. There is an implication that there seems to be a hierarchy.

What is the concept of omission? When is an heir considered omitted? If the heir is not mentioned in the will or if mentioned (according the Manresa) is merely described as father, son, daughter but not made an heir. This is the classical definition, the omission contemplated before.

If A made a will and omitted his parents is there preterition? None. Parents are not the real compulsory heir because they are excluded by the presence of the children. Supposing grand children are omitted in the will is there preterition? None. The real compulsory heirs are the children because they are the closest descendant.

Right now, under existing law, we cannot just rely on this definition. Mere omission in the will would not be sufficient because we now have Art. 906.

If the omitted compulsory heir dies: Example: C was omitted, so there is a potential reason for preterition to arise. Suppose he dies ahead of B (testator) will there still be preterition? No. The law says that if the omitted heir dies ahead of the testator the institution shall be effective but without prejudice to the right of representation.

Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.

Under Art. 906, if the compulsory heir receives any gratuitous title something from the testator then his only remedy would only be completion of his legitime.

Do we have right of representation here? Yes. Since the compulsory heir predeceased the testator, there will be a right of representation in favor of the grandchildren. The great grand children are excluded, they are barred by the closest descendants.

You have to consider the omission contemplated in preterition in conjunction with Art 906. You cannot take it independently of Art 906. If there is an omission your question should always be, “is Art 906 applicable?” This is because if it is applicable then there is no preterition since Art 906 explicitly states that the only relief to be given to the compulsory heir is completion of his legitime.

If there is right of representation would there be preterition? It depends, if the grandchildren are also omitted. Because by virtue of the right of representation they are the real compulsory heirs. If they were also omitted then there will also be preterition. But if there was no omission or if they are mentioned in the will then the institution would remain valid. It will now be a question of whether or not there is a need to complete their legitime.

If there is preterition, the heir does not only get his legitime, but the entire estate because if there is preterition the institution will be annulled as if there was no heir instituted. It leaves the entire estate open to both compulsory and intestate succession. The compulsory heir will always be nearest related intestate heir of the testator. So he stands to inherit not just his legitime but, because of the annulment of the institution of the heirs, even the intestate portion (which is not covered by 50

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH the compulsory succession). It paves the way for the way for the opportunity of the omitted heir to receive more than his legitime.

Why does the law gives such kind of importance to preterition? The consequences attaching to preterition are quite drastic compared to defective disinheritance.

This is contradictory to Art 906 which limits you only up to your legitime. If there are still heirs instituted they would still get what is given to them under the will to the extent that the legitime is not impaired.

In defective disinheritance the effect is similar to Art 906. The heir defectively disinherited will only be entitled to the completion of his legitime.

Automically ½ is always by compulsory succession in favor of compulsory heirs in the direct line except illegitimate children.

The law provides if there is defective inheritance the institution will be valid insofar as the legitime is not impaired. At the end of it the defectively disinherited heir will only get his legitime.

For the parents, legitimate children and descendants is always ½. So why is there difference in the treatment? This is because in defective disinheritance it is clear that the testator intended to deny the the compulsory heir of his legitime.

The other ½ is the free portion. If there is a will it goes by testamentary succession. If there is none it goes by intestate succession. If there is preterition the institution of heir is annulled with regard to the entire estate.

Remember that the only way that the compulsory heir maybe denied of his legitime is through an act of disinheritance (this is an absolute rule if the testator left an estate). The problem is that disinheritance is very formal act and is limited to the grounds provided by law. So if you give a ground not included in those provided by law the disinheritance is defective. Or even if the ground is among those provided by law, but your heirs where not able to prove the validity/truthfulness of that ground then you will still have a defective disinheritance.

In this case compulsory succession is allowed to take place naturally since this is the basis of annulment of the institution of heirs because of preterition. At the same time since we were able to remove or make the instituted heir out of the way, the free portion is also up for grabs. It happens is that the compulsory heir is also your nearest intestate relatives because they are in the direct line.

But even if we say that the disinheritance is defective, is there a doubt in the intention of the testator? None. The mere fact that he made the effort to effect a disinheritance speak volumes about his intention/relationship with the compulsory heir he is disinheriting.

The direct line is always favored over the collateral line. Who are those in the direct line? Parents and ascendants; children and descendants. As long as you have relatives in the direct line you will not even consider the other relatives. Your compulsory heir is almost always your nearest intestate heir. You exclude all others. So with preterition and the annulment of the institution of heirs taking place, compulsory succession takes place and intestate succession in favor of the compulsory heirs also take place. It allows the compulsory heir to receive more than his legitime.

This is not true when it comes to preterition. Basically the testator just disregarded the heir; he did not make him an heir nor disinherited him. The problem when you did not acknowledge the person without expressly disinheriting him the law becomes more generous in its presumption. The law presumes that the omission is not intentional or that you just overlooked him. That is why when this happens the law will allow the institution of heir in the will because of the presumption that the omission was not intentional.

Under Art 906 he only gets the right to complete his legitime, which means that whatever happens he is limited to ½ (legitime). With regard to the other ½ (free portion), the institution of heir will still subsist.

The law speaks of compulsory heirs who are alive at the time of the execution the will OR born after the death of the testator. There is also an interim period between the 51

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Milagros asserted under Art. 1081 institution of Salud as heir is invalid. This is a weak Art. 1081 speaks of spurious heirs not spurious children or descendants

execution of the will and before the death of the testator (quasi-posthumous) who can also be subject to preterition. Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

Milagros had a back up plan, she claimed that there is preterition because she received less than her legitime. Her legitime under the old law she was supposed to receive ____ of the estate but because of the institution she received only ½. SC said there was no preterition because there her right is only completion of his legitime.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Law says “born after the death of the testator,” will this include those who are born 5 years after the death of the testator? No. This applies to conceived child. A conceived child should be considered born for purposes beneficial to it under the law. The gestational period is only 9 mos.

AZNAR VS DUNCAN This is also a case in Persons. Despite the fact that Edward Christensen was an Australian citizen (were in generally the national law should apply) Philippine law was applied because of the renvoi doctrine. Edward Christensen left a will wherein Lucy Duncan was made as a sole heir and recognized as his natural daughter and bequeathed 3600 Helen Garcia. Helen Garcia is trying to do away with the will because her theory was that she was preterited since she was not named therein as an heir.

On when preterition will apply always consider that 906 is not applicable. The omission should preclude that applicability of 906. If 906 is APPLICABLE there is NO PRETERITION. This is why if the heir receives something by donation intervivos, donation propter nuptias, legacies or devises OR if the testator does not dispose of his entire estate so that the heir would still receive something by way of intestate succession 906 will still be applicable and there will be no preterition.

SC said there is no preterition because under Art 906 she received of a legacy which qualifies as receiving something by any title and her only right is only the completion of her legitime.

Preterition causes the annulment of institution of the heir. Will preterition always result in intestate succession? No. If there are legacies or devises these should be respected as long as they do not impair the legitime. If there are legacies or devises these are sufficient to preclude intestate succession because there will be voluntary succession with regards to these legacies or devises.

ACAIN VS IAC This case is also an example of a Simple substitution. SC said that the omission of the wife does not result to preterition because she is not a compulsory heir in the direct line. However in the case of the adopted child (Virginia Fernandez) her omission will give rise to preterition because the law confers to the adopted child the status of a legitimite child.

REYES VS BARRETTO-DATU st Salud executed 2 wills. 1 will involves Salud and nd Milagros as heirs. 2 will revoked Salud as heir because she was not the daughter of Maria (only that of his husband) It was Tirso Reyes (guardian of Salud’s children) who presented the will for probate on account of the nd revocatory clause in the 2 will. So he said that since you don’t want to recognize them as heir in Maria’s last will, we are going recover the ½ of the fish pond since the usufructuary is already dead. Milagros took the opportunity to question the right of Salud to succeed his father.

NUGUID VS NUGUID In this case parents were omitted in the will. Testator (Rosario) left a will were in she made Remedios (her sister) as universal heir. The parents were the real compulsory heirs because testator had no children.

52

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH WILLS12

In substitution, we do not have the mechanism of right of representation, but the testator can ensure that the children of the voluntary heir would succeed to the portion that he would have given in case the voluntary heir predecease him, or incapacitated or repudiates the inheritance, and that is thru substitution. But the thing is in substitution, the testator is not limited to the children of the voluntary heir in his choice of substitutes, he can always choose from the rest of humanity, he is not compelled (to choose the descendants of the VH), he may if he wants to choose someone from the descendants of the VH.

Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.

What is substitution? Substitution is the appointment of another heir so that he may enter into the inheritance in default of, or subsequent to, the heir originally instituted How does the law defines substitution? Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.

What is the purpose of substitution? If the testator provides for a substitution, we can readily see that the testator does not want to die intestate. He is making sure that his estate will not go to his relatives because disinheritance is considered only to compulsory heirs, one of the ways that the testator can prevent the other relatives who are not compulsory heirs succeeding your estate is by making a last will and testament disposing of the entire estate. But the thing is we do not have any control about the instituted heir, he may predecease the testator, or incapacitated or repudiates the inheritance that is beyond the control of the testator. That is why the law provides for substitution.

Definition given by the law is inaccurate for it fails to include fideicommissary substitution How should the word substitution be defined if we will include fideicommissary substitution? …….succeeding in default of or subsequent to ……. Succeeding in default of and succeeding subsequent to, what will be the difference? in default of- the instituted heir is substituted because he predeceased the testator; he is incapacitated; he repudiates the inheritance Subsequent to- both the instituted heir and the substitute enter into the inheritance, not in default of the fiduciary

Article 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary.

Why does the law provide for this kind of institution (substitution)? To prevent intestate succession or to prevent the ____ from passing to those persons whom the testator does not want to succeed him.

How many kinds of substitution do we have (Art.858 provides)? 4 kinds (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary

How does the law achieve that purpose? Remember the discussion of the right of representation. In some ways, substitution would serve as a counter part of right of representation.

The law provides 4 kinds of substitution but some legal authorities gives only 2 kinds of substitution namely simple and fideicommissary. Then the simple substitution will include the 2 other kinds, brief or compendious and reciprocal substitution.

The testator and a voluntary heir (VH), and the children of the voluntary heir. As we said that if the voluntary heir predeceases the testator or is incapacitated, his (VH) children will not be receiving anything from testator because there is no transmission and there is no right of representation. Unlike in compulsory succession and intestate succession, right of representation is not an exception but it allows the descendants of the compulsory heir or intestate heir to assume their position to the line of succession and inherit the estate from the testator.

How do we characterize this (substitution) as a form of institution? It is classified as a conditional institution Why? It is subject to future events 53

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What are these events? death, incapacitated or repudiation

is valid, but strictly speaking it is not a substitution because the condition is not among the grounds provided for by the law but it is valid as a conditional institution.

What institution made it conditional? The institution of the substitute

Brief or compendium substitution Article 860. Two or more persons may be substituted for one; and one person for two or more heirs.

So we have 2 heirs actually, but only one of them will eventually succeed into the estate. We can classify substitution as some kind of conditional institution and the condition pertains to the institution of the substitute. In the event of death, incapacity or repudiation of the first heir.

How many substitutes can we have for one heir? The testator can have 1 heir but he can have more than one substitute or several heirs but only one substitutes or he can have several heirs and several substitutes

Simple Substitution Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

In this kind of situation were we have multitude of persons as substitute as well as heirs, what do we call this substitution? Either brief or compendium

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.

Brief involves 1 heir Compendium involves more than 1 heir

What about death? This incapacity or repudiation is unknown event or uncertain event, the testator is not sure whether it will take place or not. But what about death? Is there any uncertainty about death that we can classify it as a condition? Death is certain. How can we justify our statement that this is also a condition? It is not the occurrence of death the condition rather the death of the heir prior to the death of the testator. That is what is uncertain.

But legal authorities believe these 2 terms are synonymous, they can be used interchangeably. If testator only has one heir but several substitutes, how does it work and the estate is worth 30 million? If the institution is silent about the designation shares of the substitutes, it is presumed to be equal. Can the testator specify the portion that they are to take in the substitution? Yes

How can a testator make a substitution? The testator is not required to specify the event which will trigger the substitution

If testator more than one heir but one substitute, how does it work? So if Heir1 and heir2 are instituted jointly to an aliquot part or to the entire estate without the designation of shares, there will no substitution upon the death of one of them because _____ applicability of the right of accretion. Accretion means that whenever one of several heirs was not able to succeed to an aliquot portion of the estate or the entire estate to which he and the other heir are instituted, his shares some pertain to the other heir who able to succeed, there is approval, so there are conditions that must be met for accretion to takes place. So if accretion does takes place as in this case, were Heir1 and Heir2 are instituted jointly without specific designation of their shares then what happens after Heir2 dies ahead of the testator or of Heir1 would be that his share accrue to Heir1 it will not go to the substitute because there is a right of accretion.

What happens if the testator did not specify? Any of conditions will be applicable Can the testator choose one or 2 conditions? Yes, but the testator should specify the conditions Can the testator impose some other conditions other than the 3 specified by law? Yes, substitution is an example of a conditional institution but the law has specified the grounds for substitution but that does not stop the testator from imposing conditions that he wants. He is allowed by law to impose any and all kinds of conditions. For example: “I institute A as my heir but if he fails to pass the bar exams his institution will cease and B shall be taking his place as his substitute” that will be a conditional institution. It 54

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH A dies, how will we divide the 1/6 portion? It must be divided proportionately

But it will be a different matter if Heir1 is instituted 1/3 and Heir2 is instituted 2/3, in which case the death of one of them would allow substitution to takes place otherwise if there is accretion Heir1 and Heir2 must die before substitution to take place.

2 B=

4 =

3

6

Reciprocal Substitution 1 Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution.

C=

1 =

6

6

The proportion will be:

Reciprocal substitution- this is a kind of substitution where the substitute are also heirs.

4:1

E.g. A, B and C are heirs of the testator. The testator can provide for the reciprocal substitution among them. If A die, B and C would be his substitute.

5

So B will get 4/5 of 1/6 share of A and C will get 1/5 of 1/6 share of A. Proportionate because we are suppose to get the same share in the substitution as they give in the institution.

There will be no problem if they are equally instituted. Because the share of A will be divided equally to B and C. A- 1/3 B- 1/3 C- 1/3

So if the total estate is 30M

1 A died

A

1 =

6

*

30M

=

5M

*

30M

=

20M

*

30M

=

5M

6

A’s share will be divided into 2 1/3 (A’s share) ÷ 2 = 1/6 2 So:

B B- 1/3 + 1/6 C- 1/3 + 1/6

4 =

3

What if the heirs were instituted proportionately with different proportion? A- 1/6 B- 2/3 C- 1/6

6

1 C

1 =

6

6

A died

2 B=

4 =

3

6

1 C= 6 55

1 = 6

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH proceeding the heir decides not to accept? Then the condition takes place which is repudiation, but what if the substitute dies in that instance, can the heirs claim the estate? We have no question that he is alive at the time the testator’s death in which case he has capacity to succeed at the time of the death of the testator but he died before the repudiation took place, so did he not have the capacity to succeed at the time the condition was fulfilled? The law says that if the situation is a conditional institution, the capacity to succeed should not only be inhered at the time of the death of the testator but also when the condition is fulfilled. No question about the first one, but what about the second requirement, that the capacity to succeed should be existing at the time the condition is fulfilled? The condition being the repudiation which takes place after 10 years from the death of the testator and the substitute in the mean time has died. He (the substitute) has no capacity anymore

The proportion will be: 4:1 5 So: 5M (share of A) * 4/5 (proportionate share of B from A’s share) = 4M

5M (share of A) * 1/5 (proportionate share of C from A’s share)

Transcriber’s understanding concurred with Suzy and Donna- the substitute has no more capacity to succeed but the right to succeed had been vested already because the repudiation

= 1M

of the instituted heir retroacts at the time of the testator’s death, therefore the heirs of the substitute can claim the property that would have gone to the substitute

Capacity to inherit should be inhere at the time of death of the testator. In case of a substitute we have establish that his institution is conditional in nature. Being conditional in nature, when should his capacity to succeed be inhered? At the time of the testator’s death

The effect of acceptance or repudiation retroacts at the time of death. Even the retroactive effect of repudiation or acceptance, it can be argued that repudiation is deemed to have taken place at the time of the testator’s death.

Would there be other requirement for him to be regarded _____ capacity to succeed considering that his institution is conditional in nature? Conditional institution, the law says that we also need to consider the time of the condition is fulfilled. The conditions are predecease, incapacity or repudiation. If predecease, if the heir dies ahead of the testator and the substitute is capacitated at the time of death of the testator, it also follows that he was also capacitated when the condition took place. Took place prior to the death of the testator

In this case, is the substitute has capacity to succeed at the time of the death of the testator? Yes Did the inheritance vest upon the substitute? Yes Can his heirs claim what would have gone to the substitute? Yes Article 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted.

The other 2 (incapacity and repudiation) becomes tricky because of the reality of court proceedings, although death may takes place today, the settlement of the estate cannot be settled until after a decade. An heir would be required to accept or repudiate after the settlement of the estate is completed. At the end, the court will issue an order and the heir will have 30 days to signify his acceptance, if the heir did not do anything then he is deemed to accept. In the interim a lot of things may happen. The testator dies, the proceedings of the settlement of his estate are instituted, proceedings are completed after 10 years. During the 10-year period, the substitute may either die or even become incapacitated to succeed. So what happens if at the end of this long

If the heir is instituted under certain conditions, can the testator so provide for a substitute for him? Yes But what happens in the condition imposed upon the heir? The substitute as a rule is also subject to the condition for the institution of the heir What are the 2 exceptions? • If the testator provides otherwise 56

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH •

his entire lifetime. Meaning to say his right as a fiduciary will end upon his death and yet in this case it is a period.

The condition is personally applicable to the heir instituted

Fideicommisary Substitution

The last will and testament can provide that it can be shorter than his lifetime. A specific period.

Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs.

It does not matter if the fideicommissary dies ahead of the fiduciary. If the fideicommissary dies ahead of the fiduciary, the heirs of the fideicommissary will be entitled to get the inheritance because his right has been vested. The effect of the period ___ the lifetime of the fiduciary or some other periods specify by the testator is only to suspend not the acquisition of his right but his enjoyment, his right to enjoy as an owner.

Elements of the fideicommissary Substitution • Presence of the first heir also known as the Fiduciary nd • Presence of the 2 heir also known as fideicommissary • Every fideicommissary substitution must be expressly made in order that it may be valid • substitution does not go beyond one degree from the heir originally instituted • that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

In fideicommissary substitution, the institution if the fideicommissary is subject to a period, it is vested upon the death of the testator. So if the testator dies, he is waiting for the lapse of the period and the period could either be the lifetime of the fiduciary if the will is silent or if the will specifies a certain period then the lapse of that period. Either of the 2, which ever comes first, because it is possible that the fiduciary dies first before the lapse of the specified period in which case the fideicommissary substitution comes in.

What does the fiduciary acquire? He is given rights to use and to the fruits more than that mere administrator, but less than those of an owner Does the fiduciary acquire ownership over estate? No

Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid.

Why is it he does not acquire ownership and that akin to a usufructuary? Because he does not acquire absolute dominion over the property, he does not acquire absolute dominion because he cannot dispose of the property. He cannot destroy the property he has the obligation to preserve and to transmit. Basically, he is classified as a usufructuary because of these obligations

The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise.

How should the fideicommisary substitution be made? The law requires that fideicommissary substitution should be expressly made And when it is expressly made? How do we comply with this requirement of express making of fideicommissary substitution? • By giving the substitution this name OR • By imposing on the fiduciary the absolute obligation of delivering the property to a second heir

How do we classify the institution of the fideicommisary? Is it conditional as well? It cannot be conditional. His right to the property is vested upon the death of the testator. That’s why the law requires that both fiduciary and fideicommissary are both alive at the time the testator dies. This institution is not subject to a condition but it is subject to a period.

If the above manner is not done, then it is not valid and cannot be given effect.

If the last will and testament is silent as to the length of time the fiduciary is suppose to enjoy the property before the fideicommissary, then we take it that it is supposed to be for

The law requires that the fideicommissary should not be more than one degree beyond the fiduciary

57

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Before one degree was argued as being one transfer, but in the ruling in the case of Palacios vs Ramirez, the one degree here means one degree of relatitonship. In this case, the fideicommissary can only be the parents or the child of the fiduciary.

suspensive condition in so far as the brothers and sisters of the wife are concerned because the happening of the event (husband died ahead of them and residue in the inheritance of the estate) would trigger the reacquisition of ownership over those properties.

PALACIOS VS RAMIREZ What does the Supreme Court mean by the word companion? Allen said: “special housemaid” Ma’am said: “____” This is how the designation of shares 1/3 to the wife as her legitime The remaining 2/3 of the free portion, he gave it to Jorge and Roberto. But the testator provided that 1/3 of the free portion should be given in usufruct to the wife. And with regard to the right of usufruct he created a substitution in favor of the special housemaid (Wanda). With regard to the 2/3 portion of the free portion, he also created a usufruct over this portion in favor of Wanda, and then he created a fideicommisary substitution. With regard to the fideicommissary substitution in favor of juan Pablo and horacio the same is null and void because juan Pablo and Horacio were not the children nor the parents of Wanda, the transfer is not within one degree. The degree refers to relationship. Last Element of fideicommissary substitution: that the fiduciary and the fideicommissary are living at the time of the death of the testator Supposing that the period specified by the testator has lapsed, the fiduciary was now obliged to give the property to the fideicommissary, would there be other obligation on the part of the fideicommissary to reimburse or to pay the fiduiciary? The useful expenses are not reimbursable but those necessary expenses (expenses for the preservation of the property) are reimbursable PCIB VS ESCOLIN There is no fideicommissary substitution but what he have in this case in some kind of a conditional institution, the condition would be the husband dies and the remainder in the inheritance in his estate. For the husband the condition is him dying ahead of the heirs of the wife and there would be residues of the inheritance that would be a resolutory condition. But the same condition or event comprise the 58

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH WILLS13

What about the prohibition against partition? Yes, it is allowed by law even upon the legitime. The prohibition against partition may be imposed even with regard to the legitime, but subject to a period

Article 867. The following shall not take effect: (1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;

Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension

(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863;

Why is it prohibited by law? It can be taken as circumvention on the limitation relating to fideicommissary substitution. Remember in fideicommissary substitution, we can only have 2 transfers and the fiduciary and fideicommissary must be related personally. So, if there limitations in fideicommissary substitution then we cannot allow this to be circumvented by simple ____ of ____ the institution as some kind of charge for the payment of income or other charges.

(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension; (4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator.

One of the provisions in a will which cannot be given effect would be a fideicommissary substitution that is not made in an express manner. Aside from this, what other provisions that cannot be given effect? • Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863 • Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension • Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator

How would we provide for a provision which will fall outside the scope of this prohibition? Instead of instituting them successively, institute them simultaneously Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. Why is it prohibited? Because essentially, this is not an institution of an heir, but it is an appointment of an agent. And obviously if the testator gave his instruction in secret that means that it is a disposition that the testator is not allowed to make under the law, otherwise there is no reason for the testator to give secret instruction.

Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863

Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written.

Would there be a prohibition against making such a provision preventing alienation? As General Rule, No. but it is subject to a limitation.

Supposing that the fideicommissary substitution is provided for in the will is null and void, what will be the consequence of its nullity? The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written.

If there would be a fideicommissary substitution then the default period would be the lifetime of fiduciary. If there is no fideicommissary substitution, we can still impose a prohibition against alienation but only for a period not beyond 20 years. Can this prohibition to alienation be imposed on the legitime? No 59

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What is condition? Every future and uncertain fact or event to the fulfillment of which juridical act is subordinated.

Why? Because we can consider the fiduciary is a principal then the fideicommissary is an accessory, hence the Principal can stand without an accessory

Kinds of condition • Suspensive condition • Resolutory condition • Potestative • Casual • Mixed

What if it is the other way around, the institution of the fiduciary is null and void, is the institution of the fideicommissary heir valid? No, the institution of the fideicommissary heir is invalid because following the same reason above, the fiduciary is considered as the principal and the fideicommissary is the accessory. The fiduciary is the principal because, such institution can exist even without a fideicommissary heir essentially he is an heir only is made subject to a period.

What is suspensive condition Fulfillment of the condition give rise to a right What is resolutory condition? Fulfillment of the condition extinguishes a right

Would the nature of his institution change? No, the character of the fiduciary’s institution is still subject to a period either his lifetime or other period as specified by the testator. As when the period expires, the fiduciary loses the property in favor of the supposed substitute. But in this case, the substitution is null and void, hence, there is no substitute.

Term or period Every future and certain fact or event to the fulfillment of which juridical act is subordinated. Would there any limitations upon the testator in imposing conditions? Yes

Supposing after the fiduciary’s lifetime or after the occurrence of the period where he was instituted as heir, where will the property go? To the instate heir of the testator, which will be consistent to the purpose of the substitute. The purpose of the substitute is to prevent intestacy. If the substitution will not work then intestacy will take place.

What are those limitations? • The testator cannot impose any charge or condition on the legitime • The testator cannot impose impossible condition • The testator cannot impose absolute prohibition against marriage • Disposition captatoria

Conditional Institution

Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.

Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.

Article 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide.

Basically, conditional institution pertains to the right of the testator to make disposition that is subject to conditions, period or mode.

Why is it the testator cannot impose an impossible condition? Because of the impossibility in fulfilling the conditions and prevents the heir from inheriting.

Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.

So if impossible or immoral conditions were imposed the heir will not inherit? No, the condition will be considered as not imposed, hence, the institution becomes pure

Why does the law allow the testator make dispositions subject to conditions, periods or modes? because it stems from testamentary privilege or power. If the testator is allowed to make dispositions take effect after his death, then it goes that we also allow him the right to determine under which circumstances his dispositions are to take effect.

Pure means? Not subject to any conditions or term

60

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Do we observe the same rule when it comes to ordinary obligations? (obligations and contracts) No, the condition is an essential part of the consideration for the obligation, so that if the condition is not fulfilled, there’s failure of consideration.

How come when it is absolute prohibition to get married, such condition is void but if the condition for the heir to get married such conditions is valid? Because such absolute prohibition would encourage immorality, since the couple would just live in together so as not to contravene the condition

In testamentary disposition, the considered consideration is the liberality of the testator

Kinds of conditions according to the manner of fulfillment • Potestative • Casual • Mixed

Article 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void.

Disposition Captatoria

Potestative condition- the fulfillment of which depends entirely on the will of the heir, legatee or devisee

Rationale for prohibition: reduces the testamentary act into a contractual transaction

Casual Condition- the fulfillment of which depends entirely on chance or third person Mixed Condition- the fulfillment of which depends partly upon chance and partly upon the will of the heir or of a third person

Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants.

Can the testator impose this kind of condition? Yes

Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood.

Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death.

Absolute prohibition to contract a first marriage is void

This rule shall not apply when the condition, already complied with, cannot be fulfilled again.

To fall outside this condition, how can the testator impose any prohibition contracting a first marriage? By imposing a relative prohibition

Would there be any specific consequences if the testator impose a potestative condition? the heir must fulfill the condition as soon as he learns of the testator's death

What makes a prohibition relative? The prohibition refers only to particular persons or group of persons, or particular periods or places

What if he had already fulfilled the condition? Is he suppose to do it again? It depends, if the condition is deemed fulfilled if such condition was already complied with AND if such a nature that it cannot be fulfilled again. But if the condition although already complied with but if it is in such a nature that it can be fulfilled again.

Can a subsequent marriage be prohibited? As a general rule, prohibition to remarry (refers to subsequent marriage) is void Exception: when it is imposed upon the widow or widower by: • The deceased spouse • Ascendants or descendants of the deceased spouse

Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise.

How about if it is imposed by the parents-in-law of the heir? The law says that only the ascendants of the deceased spouse, parents-in-law not included

Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with.

Supposing the condition is for the heir to marry? Such condition is valid

If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. 61

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Example of Mixed: Marrying the daughter of the testator’s neighbor

If the condition is a combination of the will of the heir and will of a third person or chance.

When should this mixed or casual condition be fulfilled? As a general rule, it shall be sufficient if it happen or be fulfilled at any time before or after the testator dies. Exception: if it is already been complied with at the execution of the will: • If the testator knew of the fulfillment o General Rule: it is not deemed fulfilled o Exception: if it is of such a nature that it can no longer exist or be complied with again • If the testator did not knew the fulfillment o The conditions is deemed fulfilled

For casual and mixed conditions, the requirement of law about its fulfillment is the law would recognize any fulfillment of these conditions either before or after the death of the testator. If the conditions are fulfilled before the death of the testator, we make a distinction whether the testator knew of the fulfillment of the condition or not at the time of execution of the will. If the testator does not know the fulfillment of the condition at the time of the execution of his will then the condition is deemed fulfilled because we can say that he imposed such condition only because that he did not know that it had already been fulfilled. Had he known then he would have made the institution pure and not subject to any condition.

*** (transcriber’s notes not discussed) Constructive fulfillment of a Potestative conditions When the heir, devisee or legatee is willing to obey the wishes of the testator, doing all that is in his power towards the of the condition, yet it is not fulfilled for reasons imputable to the fault or neglect of such heir, legatee or devisee, such a case the condition should be considered fulfilled

If the testator know the fulfillment of the condition at the time, then we cannot say that the fulfillment of the condition is lieu already of the fulfillment already of the condition and he still impose it then that means he wants it to be fulfilled again. In this case, there is a need to fulfill the condition again except if it substantially sure that it cannot be fulfilled again.

Constructive fulfillment of a Casual Conditions There is no constructive fulfillment, there must be an actual fulfillment because the performance does not depend on the will of the heir

Example: if the condition is requiring the heir to marry his girlfriend, it is mixed condition because it is partly on the will of the heir and partly on the will of a third person (girlfriend). If the testator did not know that the testator did not know at the time of the execution of the will that they had been married, then the condition is deemed fulfilled.

Constructive fulfillment of Mixed Conditions As a general rule, there is no constructive fulfillment, except, when the third person interested in the condition prevents its fulfillment without the heirs fault. *****

If the testator knew and still provide in his will, the condition is deemed fulfilled because this is a type of condition that cannot happen again. He can get married only once to his girlfriend.

If the condition is Potestative, the law requires absolute fulfillment. Also for casual and also for mixed.

Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests.

In potestative conditions, if the heir should learn of the death of the testator, then his obligation is to immediately perform the condition because it is dependent upon his will. The only exception is if the condition is substantially it serve as it cannot be fulfilled again.

A potestative condition can also be a negative in nature that means that the heir is required not to do something.

Example: enrolling in law school is a condition that cannot be repeated once more.

We can ensure that the heir would continue in refraining in doing that which is prohibited by the testator, we require the heir to post a security which is known as CAUCION MUCIANA.

If the condition is casual meaning it is dependent upon chance or upon the will of a third person. 62

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH He post this security of CAUCION MUCIANA, the heir will be allowed to enter the inheritance.

The institution may be also subject to a period or term. When the testator institute an heir subject to a period, it can either be a suspensive or resolutory.

Supposing that the heir violates the prohibition, he does what is prohibited by the testator, he must return what he had received together with the fruits and income.

Suspensive term or period- the heir’s right to the property will become effective after a period of time following the death of the testator. The heir acquires his right as an heir upon the death of the testator. Should the heir died anytime between the death of the testator and expiration of the SUSPENSIVE PERIOD the property will be given to the HEIRS OF THE INSTITUTED VOLUNTARY HEIR. The HEIRS OF THE INSTITUTED VOLUNTARY HEIR will be entitled to the property because the right of the instituted voluntary heir has become vested upon the death of the testator. The period or term only suspends the effectivity of his right but that does not change the fact that as of the time of the death of the testator he had already acquired the ownership of the property.

But the violation may take place many years after the death of the testator and by that time we are no longer certain as to the state of the property that has been inherited, we are not even sure that it is something worth any value. For example a car that will be inherited on the condition that he will not ever engage in a fist fight, it is a negative potestative condition. But supposing 10 years after and the car had been in the possession of the heir for 10 years, the heir engage in a fist fight, he forgot that there was an imposition upon him, then he violated the prohibition, we can now compel him to return the car. The intestate heirs of the testator saw that the car does not have any value, if that is the case, the assurance of the testator that his wishes would be respected by the heir, that is where the security comes in. The security will answer for the obligation of the heir that it will back what would have been received together with fruits and income if there will be a violation of the prohibition. This security may be in the form of a cash, property or bond. So instead of getting the car, the intestate heir can be compensated with money, the value of the car.

The testator can impose a RESOLUTORY PERIOD to the institution of heir. In resolutory period, the right is not suspended, it is immediately effective upon its vesting; only it will be extinguish upon the expiration of the period. In which case, upon the death of the testator, the heir acquired ownership and at the same time his right is already effective. After the expiration of the period, the property will be given to the INTESTATE HEIRS.

Supposing the heir upon whom a NEGATIVE POTESTATIVE CONDITION is imposed not able to post the security, what happens to the property to be inherited in the meantime. It will be placed under administration.

In the meantime that the property is not yet been transferred to the heir instituted which is subject to a SUSPENSIVE TERM OR PERIOD such property will go to the INTESTATE HEIRS OF THE TESTATOR.

What are the three instances where CAUCION MUCIANA is required? • When an heir is instituted under a negative potestative condition. Caucion Muciana secures the property right of the intestate heir in case of violation of the negative potestative condition • When the institution is subject to a SUSPENSIVE PERIOD or TERM with regard to the intestate heirs • MODAL institution

There is a conflict in Article 880 and Article 885. Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article.

What are the 2 instances where ADMINISTRATION is required by law? • When an heir instituted failed to post a security or caucion muciana in a NEGATIVE POTESTATIVE CONDITION • when the institution is subject to a SUSPENSIVE CONDITION

Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.

Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. 63

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH If the heir is instituted under with a mode, that means the heir immediately acquire the right to the property, or the right immediately becomes effective. But what will be the assurance of the testator that the heir will perform the mode that has been imposed in the latter’s institution? Caucion Muciana comes in, so if it is proven that the heir did not perform the object of the institution or if it is not applied the property as specified by the testator or if the heir did not satisfy the charges impose upon the heir, the obligation of the heir that was instituted with a mode is to return what he had received together with the fruits and income. And to ensure that there will be performance of the obligation, there is a caucion muciana.

How do we solve the conflict? • Article 880 will apply to SUSPENSIVE CONDITIONplace under administration • Article 885 will apply to SUSPENSIVE PERIOD- to the intestate heirs There will be additional obligation upon the intestate heirs so that they can enter into the inheritance. Such additional obligation is they are required to post a security, they are required to give CAUCION MUCIANA. This is to secure the property right that is to be transferred to the voluntary heirs. If it is subject to a resolutory period, the voluntary heir will enter to the inheritance first. Thereafter, the intestate heir will succeed after the expiration of the period.

RABADILLA VS CA It is very clear from the codicil that the testatrix intended that the property be inherited by Jorge. It is likewise clear that the testatrix imposed an obligation on Jorge and his successors-in-interest to deliver 100 piculs of sugar to PR during the latter’s lifetime. Jorge’s inheritance and the effectivity of his institution as a devisee, dependent on the performance of said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix near descendants. The manner of institution of Jorge under the codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. To some extent, it’s similar to a resolutory condition.

In SUSPENSIVE TERM OR PERIOD, the intestate heirs should furnish caucion muciana to protect the rights of the voluntary heirs but we DO NOT impose the same condition (furnishing caucion muciana) upon the voluntary heirs for the protection of the right of the intestate heirs in RESOLUTORY TERM OR PERIOD because the law does not make that requirement. SUSPENSIVE CONDITION, the property will be placed under ADMINISTRATION. Article 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.

Article 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

Modal institution- a mode consists in the statement of the object of the institution, or the application of the property left by the testator, or the charges upon the heir. Testator states the: • Object of the institution • Application of the property • Charges upon the heir

If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a) Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a)

Would a mode be considered a condition that will suspend the right of the heir with regard to the inheritance? No, unless contrary intention on the part of the testator is apparent.

Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.

A MODE is OBLIGATORY, but it does not SUSPEND while a CONDITION SUSPENDS but NOT OBLIGATORY.

64

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH LEGITIME

Legitimate parents and ascendants

Article 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.

Direct Line

Article 887. The following are compulsory heirs: (1) (2) (3) (4) (5)

Legitimate children and descendants, with respect to their legitimate parents and ascendants; In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; The widow or widower; Acknowledged natural children, and natural children by legal fiction; Other illegitimate children referred to in article 287.

Collateral line

Legitimate children and descendants

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

The Legitimate Children and descendants prevails over the Legitimate parents and ascendants because of the principle in law that “love descends.” “We love more those who come after us”

In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

What is the consequence of that principle? So if there are legitimate parents and/or ascendants and there are legitimate children and/or descendants, the legitimate parents and ascendants are out of the picture or they are excluded

Who are the COMPULSORY HEIRS? • Legitimate children and descendants, with respect to their legitimate parents and ascendants • legitimate parents and ascendants, with respect to their legitimate children and descendants • The widow or widower • Illegitimate Children (the law speaks of acknowledge natural children, natural children by legal fiction and spurious children, but this classification has been abolished under the FAMILY CODE) o The classification of acknowledge natural children, natural children by legal fiction and spurious children will be relevant if death takes place PRIOR TO THE FAMILY CODE, then we also apply the sharing involve under the CIVIL CODE. Before the effectivity of the FAMILY CODE- before AUGUST 1988.

Would there be any compulsory heir that will exclude legitimate parents and ascendants? None, only legitimate children and descendants The Parents can inherit together with the surviving spouse. The parents can also inherit with illegitimate children. Supposing only legitimate descendants (grandchild) as against parents, will the parents be excluded? Yes If we notice when it comes to ILLEGITIMATE CHILDREN, we are limited to CHILDREN unlike in LEGITIMATE CHILDREN AND DESCENDANTS, PARENTS AND ASCENDANTS, this is because of the IRON CURTAIN RULE.

We have a hierarchy of compulsory heirs, the hierarchy will be between the so called: • Primary Compulsory heirs- they are given priority over the so-called secondary heirs o Legitimate Children and descendants • Secondary Compulsory heirs o Legitimate parents and ascendants

Iron Curtain Rule- a bar prohibiting an illegitimate child from succeeding to the inheritance of the legitimate children and relatives of the parents and vice versa

Note: the legitimate parents and ascendants as well as legitimate children and descendants are all in the same line. The DIRECT LINE. 65

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Testator (decedent) Decedent A

B A

C

D

E

G

B

C

F

H

I

D

Legends:

E

F

G

A- was disinherited C- predeceases the decedent

Legitimate

Illegitimate

We have disinheritance and predecease that opens the right of representation Theoretically, the right to legitime is limited up to B. so that if he has other descendants, they cannot inherit anymore but this ha to give way to the so-called RIGHT OF REPRESENTATION.

Who shall be the representative for A? Only D, because E is barred from representing A, because under the law being an illegitimate relative (E) of a legitimate child (A), he (E) cannot inherit from the legitimate relatives (decedent) of the legitimate child (A)

B can be represented by E and F A can be represented by C only, not by D because of the illegitimate relation with A.

Who shall represent C? Both F and G, because the law so provides Why is there such a situation? Why is it that F can represent B But D cannot represent A, when F is also illegitimate like D? Because there is an explicit provision in the law, that both a legitimate (G) and illegitimate (F) children or an ILLEGITIMATE child (B) may represent him (B). however a Legitimate Child (A) can only be represented by his own Legitimate Child (C).

Remember: the peculiarly does not stop in this case, not because F and G can represent means that they already have equal rights in sharing.

Indeed, there is an inherent unfairness, but that what the law says. The law gives more expanded rights to the illegitimate children when it comes to the right of representation.

How should they (F & G) share in the legitime that should have gone to C? Proportionate, not ½ : ¼ because it will only gives us ¾. It will be 2/3 and 1/3.

In right of representation only allows us to determine who shall be inheriting but the rule relating to their shares would still be governed by the ordinary rules on legitime.

Another Example:

Why is it 2/3 and 1/3? We apply the ratio 2:1, the illegitimate child is only entitled to the half of the legitime of the illegitimate child

A and B - Legitimate Children of the Decedent C - Illegitimate Children of the decedent D, E, F and G- Grandchildren of the decedent

Supposing that the legitime of C is 36M. F will get 24M G will get 12M

D- Legitimate child of A E- illegitimate child of A F- Legitimate child of C G- illegitimate child of C 66

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH WILLS14

Illustration of right of representation

Compulsory Heirs • Legitimate children and descendants • Legitimate Parents and ascendants • Surviving Spouse • Illegitimate Children

Decedent

C1

If the decedent or testator is illegitimate there would be no changes to the line up of the compulsory heirs stated above except that the parents which were referred to as illegitimate parents are reduced to the category of secondary compulsory heirs even with regard to legitimate children, in other words, illegitimate parents may be exclude by any kind of children of the decendent

C2

GC1

C3

GC2

GC3

GC4

C1 and C2- children of the decedent GC1, GC2, GC3, GC4- grand children of the decedent * note- the above description (C1 and C2- children of the decedent and GC1, GC2, GC3, GC4- grand children of the decedent), in succession, we SHALL refer to all protagonist in relation to the decedent or testator. ALWAYS REFER TO THE DECEDENT.

Rule of Proximity- not all descendants will be entitled to inherit. Rule of proximity applies in both Compulsory and Intestate Succession. “the nearer excludes the farther”

C3- predeceased the decedent

Decedent

Ordinarily only C1 and C2 will inherit because they are the descendants nearest in degree, however in compulsory succession there is a right of representation in favor of children of those children that cannot inherit.

Children

So, by virtue of right of representation GC3 and GC4 will be elevated to the level of C3, because they are representing C3 in the succession to the estate of the decedent.

Grand Children

Decedent Great Grand Children

C1

Who shall inherit if there are children, Grand Children and great grand children? Children, because they are nearest in degree among the descendants, they exclude grand children and great grand children.

C2

C3 elevated

GC1

When do grand children and great grand children will inherit? Only when there is vacancy in the level above them, they cannot inherit so long as the level above them is occupied.

GC2

GC3

GC4

What if the vacancy takes place in the ascending line? Do we also observe the rule of proximity in the ascending line? Yes Illustration:

What is the exception of the rule of proximity? Right of representation. If right of representation is applicable, there is some kind of opening that allows those who are farther in degree that would inherit along side with those who are nearer in degree.

MGF- Maternal Grand Father MGM- Maternal Grand Mother PGF- Paternal Grand Father PGM- Paternal Grand Mother 67

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH

MGF

MGM

PGF

Mother

and 53 of the Family Code. (Art. 54, Family Code)

PGM

Who are considered surviving spouse? If the law only considers a spouse if there is a valid and subsisting marriage. Common-law marriages are not recognize under our law

Father

Supposing that the marriage between the spouses is null and void, can it still be questioned? Yes, in a petition for declaration of nullity only the spouses can question the marriage. Heirs can question the marriage in the settlement of the estate of the deceased spouse

Decedent

Father- predeceased the decedent What happens to the share that should go to the father? It goes all to the mother, the legitime of the mother and the legitime of the father

NIÑAL VS BADAYOG A null and void marriage is always subject to direct and collateral attack which cannot be said of to voidable marriage and in marriage which has a ground for legal separation. Only those parties to the marriage have standing to file a petition for nullity

Can there be a representation by the Paternal Grand parents? No, because there is no right of representation in the ascending line The rule of proximity still applies because the mere fact that the mother bars the grand parents from inheriting

Reconciling NIÑAL VS BADAYOG and CARLOS VS SANDOVAL Validity of the Marriage can be attacked by filing a petition for declaration of nullity by the parties to the marriage and by the Heirs in the settlement of the estate of the deceased spouse. When the heirs attacked the validity of the marriage, such heirs are acting for the purpose of their inheritance, they are not really concerned about the nullity of the marriage, they are after is their inheritance which stands to increase if they are able to get the spouse out of the picture. If there is no surviving spouse, the free portion will increase and if there are no other heirs, they will get the entire estate to themselves.

But in this case, we are not applying the exception of rule of proximity which is the right of representation because there is no right of representation in the ascending line. Who are considered legitimate children? Children conceived or born during the marriage of the parents are legitimate. (Art 164, Family Code) It is sufficient either birth OR conception takes place within a valid marriage. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated (legitimated Children). (Art 177, Family Code) the effect of legitimation makes them legitimate as well. Legitimation retroacts from the date of birth

ROSALES VS ROSALES A widow is not an intestate heir of her mother-in-law because the compulsory heirs in Art. 887 must be related to the decedent. The Surviving spouse is rd considered a 3 person as regards to the estate of the parent-in-law.

Who are considered illegitimate children? General Rule: Children conceived and born outside a valid marriage are illegitimate. (Art 165, Family Code) Exceptions: • if the ground for nullity is psychological incapacity (art. 36, family code) • if the ground for nullity is contrating a subsequent marriage without complying with the requisites imposed under Art. 52

LAPUZ VS EUFEMIO An action for legal separation is a purely personal action which cannot be continued by the heirs. Being personal in character, it follows that the death of one party to the action cause the death of the action itself. An action for legal separation is abated by the death of the plaintiff, even if property rights are involved, 68

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH is that these rights are mere effects of a decree of separation, the source being the decree itself; without such decree such rights do not come into existence because they are mere expectancy.

What is a marriage in articulo mortis? That one of the spouse is at the danger of death AND the person is actually dying No, Marriage in Articulo Mortis

Marriage in Mortis Causa?

BARITUA VS CA the obligations of Baritua are extinguished by the payment made in favor of the successors-in-interest. The surviving spouse and legitimate son are the successors-in-interest referred to in law and not the parents of the deceased because parents only succeed only when the decedent died without legitimate descendants. Mere estrangement is not a legal ground for the disqualification of surviving spouse as an heir.

What happens if it is the surviving spouse who killed the decedent who is in the verge of death when they contracted the marriage? The surviving spouse will not inherit from the decedent, because (discussion will be in the capacity to inherit)

Legitime of the Compulsory heirs

Article 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same.

How much is the share of a Compulsory heir who does not inherit with any other compulsory heir? Ordinarily, ½ of the estate of the deceased

If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants.

The sharing depends on the number of other compulsory heirs and the identity of the other compulsory heirs.

In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.

If the decedent has legitimate children it is automatic that they get the ½ of the estate. In the absence of the legitimate children, if the decedent has legitimate parents, automatically the parents inherits the ½ of the estate.

Sharing: 1 Legitimate Child- ½ of the estate Surviving Spouse- ¼ of the estate Legitimate Parent

Is the surviving spouse alone stands to inherit, how much should the surviving spouse inherits? General Rule: ½ of the estate Exception: when the marriage between spouses is in articulo mortis and the decedent died within 3 months after the celebration of the marriage- the surviving spouse will get 1/3 of the estate Rationale: to avoid marriages purely for financial gain Exception to the exception: if, prior to the marriage, the spouses cohabited as husband and wife for more than 5 years, the surviving spouse will get ½ of the estate Rationale: the suspicion of financial profit motive is more or less erased Cheezy Rationale: the marriage in articulo mortis was done out of love and not out of material benefit

Surviving Spouse,1/4 1 Legitimate Child, 1/2

The legitimate parent will not get anything because they are excluded by the legitimate child

69

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Sharing: 4 legitimate children – ½ of the estate which is divided by 4 Surviving Spouse- portion equal to legitime of a legitimate child

Total Share of:

Legitimate Children, 1/2

Illegitmate children, 1/2

Surviving Spouse, 1/8 Legitimate Children, 1/2

Individual shares of each legitimate children and each Illegitimate children

Hence 4 legitimate children- the ½ of the estate will be divided into 4 (share of the legitimate children ÷ 4 legitimate children = 1/8 of the estate) Surviving spouse- portion equal to legitime of each legitimate child is 1/8

1st LC, 1/8

8th IC, 1st LC,1/8 1/16

SS, 1/8

7th IC, 1/16 6th IC, 1/16

2nd LC, 1/8

5th IC, 1/16

3rd LC, 1/8

4th IC, 1/16

2nd LC, 1/8 3rd IC, 1/16

4th LC, 1/8 3rd LC, 1/8

2nd IC, 1/16 4th LC, 1/8

1st IC, 1/16

The entire free portion will now go to the entire illegitimate children. We get the share of the illegitimate children to the free portion.

Where do we get the share of the surviving spouse? From the free portion

Sharing: 4 legitimate children – ½ of the estate which is divided by 4 8 illegitimate children – ½ of the share of each legitimate children Surviving Spouse- portion equal to share of a legitimate child

Sharing: 4 legitimate children – ½ of the estate which is divided by 4 8 illegitimate children – ½ of the share of a legitimate child Formula (share of one legitimate child): ½ of the estate ÷ 4 = 1/8

Formula (share of one legitimate child): ½ of the estate ÷ 4 = 1/8

Formula (share of one illegitimate child): Share of one Legitimate Child ÷ 2 = 1/16

Formula (share of one illegitimate child): Share of one Legitimate Child ÷ 2 = 1/16

Formula (total shares of Illegitimate Children): 1/16 (Share of one illegitimate child) * 8 = ½

Formula (total shares of Illegitimate Children): 1/16 (Share of one illegitimate child) * 8 = ½ 70

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH So we divide the remaining portion the illegitimate children. So their share will suffer reduction.

Share of the Surviving Spouse is 1/8 because it is the portion equal to the share of a legitimate child

Individual Shares of each legitimate children, surviving spouse and illegitimate children

In the above case, total share of illegitimate children is ½ of the estate and the surviving spouse is also entitled 1/8 of the estate. It exceeds the entire free portion. So what do we do? We reduce the shares of the illegitimate children proportionately

1st LC, 1/8

Shares of each illegitimate child

SS, 1/8

Note: do the Math

2nd LC, 1/8

Why?

3rd LC, 1/8

Because the law itself expresses preference in favor of the surviving spouse, by stating that the legitime of the Surviving spouse should be satisfied ahead of the legitime of the illegitimate children, because the law acknowledges the injustice in the surviving spouse

4th LC, 1/8

Sharing: Legitimate Parents alone- ½ of the estate

Total shares of legitimate children, illegitimate children and surviving spouse

Sharing: Legitimate Parents – ½ of the estate Surviving Spouse – ¼ of the estate

Surviving Spouse,1/8

Legitimate Children, 4/8 or 1/2

Sharing: Legitimate Parents – ½ of the estate Surviving Spouse – 1/8 of the estate Illegitimate Children – ¼ of the estate

Illegitimate Children , 3/8

SS, 1/8

Individual Shares of each legitimate children; share of the surviving spouse and total share of the illegitimate children

LP, 1/2

IC, 1/4

Surviving Spouse, 1/8 1st LC, 1/8

Free portion is 1/8

2nd LC, 1/8 3rd LC, 1/8

Illegitimate Children

Sharing: Legitimate Parents – ½ of the estate Illegitimate Children – ¼ of the estate

4th LC, 1/8

Sharing: Surviving Spouse – 1/3 of the estate Illegitimate Children – 1/3 of the estate 71

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Sharing: Illegitimate Children alone– 1/2 of the estate

The sum is the assets

Sharing: Illegitimate Parents alone– 1/2 of the estate of their illegitimate child

Deduct the assets to all personal obligations or debts, the answer will be called net available assets To get the net hereditary estate- we need to collate the donations that he has made during the decedents lifetime

Sharing: Illegitimate Parents - 1/4 of the estate of their illegitimate child Surviving Spouse – 1/4 of the estate

What is collate? For purposes of computation it means adding the value of the property that has been donated by the decedent during his lifetime

COMPUTATION OF LEGITIME

Collation means bringing back the value as well as imputing the value of the donation either to the legitime or the free portion

Article 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them.

What value do we use? The value must be that at the time of the donation, since donation conveys ownership upon knowledge by the donor of the acceptance by the donee. The done will suffer the loss or increase of the value of the thing donated following the principle of res sperit domino (owner bears the risk of loss)

Article 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code.

Do we physically bring back the property itself? No, just the value

Article 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime.

After adding the value of the collated property, we will arrived at the NET HEREDITARY ESTATE

Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code.

NET HEREDITARY ESTATE- the basis of the computation for the legitime

STEPS: Make an inventory What do we do if we conduct an inventory? Determine the assets If the decedent is married, distinguished which belongs to the conjugal or community property and which belongs to the decedent exclusively After determining the total of conjugal or community property, deduct the all the obligations chargeable to the conjugal partnership or community property. After deducting, divide the total or net total by 2, the ½ will represent the share of the married decedent After getting the quotient, add it to the exclusive property 72

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH PROBLEM SOLVING

2.

Decedent Wife – W A Legitimate children B of the decedent C D Illegitimate children E of the decedent F

3.

G –legitimate Child of A H – Illegitimate Child of A I – Legitimate Child of E J – Legitimate Child of E

Legitimate Children (LC) will get ½ of the estate • NHE ÷ 2 = total shares of the LC • 48M ÷ 2 = 24M • Total shares of the LC is 24M

A- Predeceased the decedent E- Predeceased the decedent

Total shares of the LC ÷ number of LC = individual share of each LC • 24M ÷ 4 = 6M • Individual share of each LC is 6M

Conjugal Assets- 100M Personal Obligations- 10M Donation inter vivos TOTAL = 8M • 4M in favor of F (illegitimate child of the decedent) • 4M in favor of ex girlfriend

Wife will get the same share of a legitimate child Share of the wife is 6M Illegitimate children (IC) will get ½ of the share of a legitimate child • Individual share of one LC ÷ 2 = individual Share of each IC • 6M ÷ 2 = 3M • Individual Share of each IC is 3M

Last will and testament states that “I bequeath as a legacy to Atty. Masilungan the amount of 6M” Atty. Masilungan is a witness to the will, the will is attested by 3 OTHER witnesses Note: if the will is attested by 3 witnesses including Atty. Masilungan, she will not inherit.

Individual share of each IC * number of IC = Total shares of illegitimate children • 3M * 2 = 6M • Total shares of illegitimate children is 6M

ILLUSTRATION: ?

F

E

I

J

G

Deduct the assets to all personal obligations or debts • Decedent’s assets – Personal obligations = Net available assets • 50M – 10M = 40M • Net Available Assets is 40M Collate all donations inter vivos • Net available assets + value of the donation inter vivos = Net hereditary Estate (NHE) • 40M + 8M (total of 4M in favor of F + 4M in favor of ex girlfriend) = 48M • NHE is 48M

Decedent

Wife

A

C

B

So, total shares of legitimate children, surviving spouse and illegitimate children Surviving Spouse, 6M

D

Legitimate Children, 24M

H

Procedure: 1. Make an inventory • Conjugal Assets ÷ 2 = decedent’s assets • 100M ÷ 2 = 50M • Decedent’s assets is 50M 73

Illegitimate Children, 6M

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Free Portion – Donation made in favor of strangers – Excess of the value of Donation made in favor of a Compulsory Heir = Absolute Free Portion 12M – 4M – 1M = 7M

Since A and E predeceased the decedent, right of representation comes in Legitimate Children individual Shares • G (right of representation) – 6M • H gets nothing, because he cannot represent A (iron curtain rule) • B – 6m • C – 6m • D – 6m

Absolute Free Portion is 7M So: Legitimate Children individual Shares • G (right of representation) – 6M • H gets nothing, because he cannot represent A (iron curtain rule) • B – 6m • C – 6m • D – 6m

Surviving Spouse – 6M Illegitimate children individual shares • E – 3M (predeceased) o Right of representation
I – 2m (2/3 of the legitime of E)
J – 1m (1/3 of the legitime of E) • F – 3M

Surviving Spouse – 6M Illegitimate children individual shares • E – 3M (predeceased) o Right of representation
I – 2M (2/3 of the legitime of E)
J – 1M (1/3 of the legitime of E) • F – 3M

So, individual shares of all Compulsory Heirs

G, 6M

I, 2M SS, 6M

J, 1M

Absolute Free Portion is 7M

B, 6M

F, 3M

SO: Final Shares of all Compulsory Heirs and the Absolute free portion

C, 6M D, 6M

G, 6M

I, 2M

SS, 6M

J, 1M

Imputation of such collationable donations unless otherwise provided by the testator

B, 6M F, 3M Imputed Collationable Donations, 5M

C, 6M

If the testator otherwise provides that such donation made in favor of a compulsory heir, it will not be imputed in the legitime, there will be still imputation but such imputation will be on the Free Portion • Value of Donation in favor of a Compulsory heir – Legitime = excess of the donation which will be imputed to the free portion

D, 6M

AFP, 7M

Is the Absolute Free Portion (AFP) is sufficient to answer the legacy of 6M? Yes

F was given 4M donation intervivos 4M – 3M = 1M Excess of the donation which will be imputed to the free portion is 1M

74

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH

G, 6M

SS, 6M

I, 2M J, 1M

B, 6M F, 3M

C, 6M Legacy, 6M

Imputed Collationable Donations, 5M

D, 6M

Excess , 1M

Do we need to reduce any of the legacies? No Do we need to revoke any of the donations? No When do we need to revoke any of the donations? If it exceeds the legitime When does that happen? If it goes beyond the free portion If it exceeds to the available free portion, it already infringes the legitime and it is needed to reduce to the extent of the infringement. Who will the get 1M? The intestate heirs Who will be the intestate heirs? The compulsory heirs, because the compulsory heirs are necessarily the closest intestate heirs

75

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH WILLS15 PROBLEM SOLVING NO.2

Sharing: Shares of Compulsory Heirs

Henry Spouses Wilma A Legitimate children B of the decedent C D – Illegitimate child

Surviving Spouse, portion equal to a legitimate child

During their Marriage they are able to accumulate the following properties: House and lot – 5M Parcel of Land – 3M Shares of Stock – 3M Bank deposits – 3M nd 2 House and Lot – 2M

Illegitimate Child, 1/2 of the share of one legitimate child

Legitimate Children, 1/2 of the estate

Before Henry died he accumulated expenses: Hospital expenses – 600K He is a breadwinner of the family he incurred debts Debts – 1M

Individual Shares of each Compulsory heirs

Donations made by Henry during his lifetime In favor of best friend – 800K In favor of A – 400K

A, 1/6

In his Will, the following legacies • Legacy1 – 2M • Legacy2 – 1M

Wilma, 1/6 D, 1/12

B, 1/6

C, 1/6

Illustration ?

Henry

D

A

Wilma

B

Procedure Make an Inventory House and lot Parcel of Land Shares of Stock Bank deposits nd 2 House and Lot Total

C

– 5M – 3M – 3M – 3M – 2M – 16M

All expenses and debts are chargeable against the community property or conjugal partnership. (see art. 94, 95,121,122 and 123 of the Family Code) Total – Hospital expenses – debts = Conjugal assets 16M – 600k – 1M = 14.4M Conjugal assets is 14.4M Conjugal Assets ÷ 2 = Decedent’s assets 14.4 ÷ 2 = 7.2M 76

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Decedent’s assets is 7.2M

we impute it to the legitime because the donation is taken to be as an advance of the legitime. Even if there is no provision in the testator’s will that the donation in favor of the compulsory should be imputed to the free portion if the donation exceeds to the legitime. (like in problem solving #1) If it exceeds the legtime then we will impute the excess to the free portion. Donation made in favor of a stranger, imputed in the free portion Free Portion deducted to Donation inter vivos in favor of the stranger 2.1M – 800K = 1.3M

Decedent’s assets – personal obligations or debts = Net Available Assets 7.2M – 0 = 7.2M Net Available Assets is 7.2M (Note: if there are personal obligations or debts (those not chargeable against the community property or conjugal partnership) of the decedent, such liabilities should be deducted in the decedent’s assets. In this case, we have no personal liabilities) Collation Net Available Assets + Donation in favor of best friend + Donation in favor of A = Net Hereditary Estate 7.2M + 800k + 400K = 8.4M Net Hereditary Estate is 8.4M

Absolute Free portion is only 1.3M Is the Absolute Free Portion (AFP) is sufficient to answer the legacies in total of 3M? No

Shares of Compulsory Heirs • Legitimate Children – ½ of the estate 8.4M ÷ 2 = 4.2M 4.2M ÷ 3 = 1.4M o A – 1.4M (it will be 1M after we impute the donation) o B – 1.4M o C – 1.4M • Surviving Spouse – portion equal to one legitimate child o Wilma - 1.4M • Illegitimate Child – ½ of the share of one legitimate child o D – 700K • Free Portion – 2.1M

Why do we impute the donation first before we distribute the legacies? Because donations are given preference over devises and legacies How do we reduce the legacies? Do we reduce them equally? No, reduce them proportionately, pro-rata Article 911 – legacies and devises will be reduced pro rata. We apply this article whenever there are compulsory heirs and there is a danger of impairing the legitime Article 950 – there is a hierarchy of legacies, we apply this article if the only dispositions are only legacies or devises General Rule: Legitime is inviolable, the testator cannot impose burdens, conditions and charges. Exception: • it can be burden by a prohibition against partition • Art. 1080 par. 2 - A parent who, in the interest of his or her

Collation by imputation Donation made in favor of a Compulsory heir, imputed in his legitime Share of the CH deducted to Donation inter vivos in favor of such CH 1.4M – 400K = 1M Share of A is 1M because such donation inter vivos is considered as an advance to his legitime. There is no provision in the will of the testator that such donation inter vivos made in favor of A shall be imputed to the free portion, hence in the absence of such provision such donation will be imputed to his legitime. We will only impute donation made in favor of a compulsory heir to the free portion if the testator if the testator provide it for that imputation otherwise

family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash.

•

77

Restriction on the legitime imposed by law o Art. 159 of the Family Code o Reserva Troncal

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Reserva Troncal

What is the significance of this “ANOTHER ASCENDANT”? The property should NOT come from the Reservista, it should come from another ascendant. 2 different ascendants are involved in reserve troncal. Ascendant as reservista and ascendant as the origin of the property.

Article 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

What is the mode of transfer from the origin to the praepositus? Gratuitous Title

What is Reserva Troncal? The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

What kind of transfer do we have in gratuitous title? • Donation Inter vivos • Testamentary Succession What is gratuitous title? The consideration is the liberality or generosity of the donor

Who are the personalities/parties in Reserva Troncal? • Origin • Praepositus • Reservista • Reservatarios

Personalities in Reserva troncal • Origin – Source of the property, it is another ascendant or brother or sister from whom the praepositus get the property. We are concerned on how the property is transferred and such transfer must be by gratuitous title.

What is the purpose of reserve troncal? To prevent the property from passing from one family to the other or from one line to another to the other.

•

Praepositus – it is the descendant of the Reservista. The Praepositus should not have any issue. He is also called the arbiter of the reserva because he actually has the power to prevent reserve troncal by disposing such property. It is not necessary that such disposition in order to prevent reserva troncal must be during the lifetime of the praepositus, it can be by mortis cause meaning by a valid last will and testament. If the praepositus disposes it mortis causa, can he dispose of it in favor of the ascendant and still prevent reserva troncal? Yes, by a valid last will and testament. There will be no reserve troncal because the transfer between the praepositus and reservista is not by operation of law.

•

Reservista – he is the ascendant of the praepositus. What right does he have over the reserve property? Ownership but subject to a resolutory condition

Ascendant (Reservista) inherited the reserve property from his descendant (praepositus) by operation of law Are we concerned about the transfer from the descendant (praepositus) to ascendant (reservista)? Yes, it should be by operation of law Example of Gratuitous title but not by operation of law Testamentary Dispositions By operation of law, we are only limited to what modes of transfer? Intestate Succession and Compulsory Succession When would intestate or compulsory succession happen? When the praepositus died without a will and without an issue, meaning he has no descendants. Are we concerned with where the praepositus got the property? Yes, because for reserve troncal to be effective the property should come from ANOTHER ascendant or brother or sister

What is the resolutory condition? At the time of death of the reservista, there are reservatarios surviving him. How would that affect the ownership if there are reservatarios surviving? Ownership is extinguished 78

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH •

Supposing that the reservista had died, would there be another proceeding that must be initiated to establish the right of the reservatarios? None, specially when there is a decree of registration on the right of reserve troncal

Reservatarios – they are the beneficiaries of the reserve property Who are the reservatarios? Relatives by third degree of the praepositus Is it necessary that the reservatarios are blood relative of the reservista? No, but it is possible that they are blood related

Upon the death of the reservista the right of the reservatarios vest automatically As among our reservatarios, how do we determine who shall inherit? Remember: the purpose of the rules in reserve troncal is to determine who the resevatarios are but among themselves we determine better right in accordance with intestate succession. Who are the reservatarios? Relatives by third degree of the praepositus

What properties can be a subject of reserve troncal? Either real or personal properties The problem arises when the praepositus decides to make the reservista as sole heir in the entire estate because the properties will be transferred by 2 modes What are these 2 modes? By operation of law and testamentary disposition

rd

Great Grand Parent (3 degree) Usually the estate of the decedent is composed of different properties, house and lot, money etc… the problem is how do we determine which property would fall as legitime and properties which would fall in the free portion.

Relatives in the direct line nd

Grand Parent (2 degree) Is that determination material? Yes, because we need to determine the property previously acquired by the praepositus would be subject to reserva troncal.

st

Parent (1 degree)

rd

Uncles/Aunts (3 degree) th

Cousins (4 degree)

It is easy if the testator singled out the properties. Example: the property is house and lot named as property A “I bequeath this property A to my father as a devise” (automatic it is not covered as a legitime of the father because by express provision in the will this goes by way of devise, it will not be by operation of law)

Praepositus

nd

Brother/Sisters (2 degree)

rd

Nephews/Nieces (3 degree)

2 theories • Reserva Maxima • Reserva Minima

Relatives in the collateral line

Reserva Maxima- we try to put into the legitime as much as possible of the reservable property, so if the entire estate is worth 40M; the reservable property is worth 30M, we put all reservable property as passing thru the legitime then all other properties will now form part of the free portion.

Computing the degree, determine how many people from the praepositus then deduct 1 Example: Praepositus Parents Grand Parent

Reserva Minima- proportionate; all property passing to reservista must be considred as passing partly by operation of law and partly by will, hence ½ of the property gratuitously acquired from the origin should be reservable and the other should be free.

st

1 person nd 2 person rd 3 person

3 people minus 1 (3 – 1) = 2, so grand parent being the last nd counted is 2 in degree 79

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH st

1 degree – parents nd 2 degree – brother/sister, grand parents rd 3 degree - uncles/aunts, nephew/nieces, great grand parents

Intestate Succession. Proximity of degree and the right of representation are basic principles of ordinary Intestate Succession. Hence, upon the reservista’s death, the property should pass, not to all reservatarios as a class, but only those nearest in degree to praepositus. And there is right of representation on the part of reservatarios who are rd within the 3 degree from praepositus. So is the rule that those of the full blood get double the share of those of the half-blood, applicable.

All reservatarios are all related legitimately to praepositus Supposing that the reservista was survived by brothers/sister and nephew and nieces, who shall inherit? Brothers and sisters

FLORENTINO VS FLORENTINO If the purpose of the law is to reserve the property in favor of the resevatarios which is achieved if the property lands in their hands why cannot the reservista choose who among the reservatarios shall inherit? Because the reservatarios do not inherit from the reservista. Upon the happening of the condition (death of reservista ahead of the reservatarios) all rights of ownership vested over the reservista are terminated. It does not form part of her estate. Since it does not form part of her estate she does not have the right to control its institution.

Is there any way by way of exception that nephews and nieces can also inherit with the presence of brothers/sisters? Yes, by way of right of representation Is there a right of representation in the collateral line? Yes, but only in favor of nephews and nieces Remember: nephews and nieces exclude uncles and aunts. If there are nephews and nieces, uncles and aunts cannot inherit What other rules do we apply in resevatarios? • Rules of proximity • Right of representation • Sharing of full blood relatives and half blood relatives

EDROSO VS SABLAN In this case there was doubt on the right of Marcelina to register the land in her name because she is merely a reservista and the act of registration is an act of ownerhip. There is confusion regarding the rights acquired by the reservista because of the fact that the property is reserved in favor of the reservatarios. This seems to mean that she is a mere usufructuary who does not have the right to register the property in the registry in her name. Although registration is does not vest ownership, still it is an act of ownership. SC clarified that the reservista has complete ownership over the property. He can possess use, enjoy, recover and dispose conditionally the property .

SOLIVIO VS CA Reserve troncal applies to property inherited by an ascendant from a descendant who inherited it from another ascendant or a brother/sister. It does not apply to property inherited by a descendant from his ascendant. In this case, there is only one transfer because in reserva troncal it requires 2 transfers, one by gratuitous title and the other is by operation of law WILLS16 PADURA VS BALDOVINO The rules on intestate succession relating to the sharing of the half-blood and full blood relatives shall also be applicable when it comes to determining the shares of the reservatarios. Those of full be blood were to get twice as much of that of the half blood.

If the reservista disposes of the land registered in her rd name to a 3 person after the disposal the reservista died, what happens to the right of ownership of the rd acquired by the 3 person? There is a saying in law that the “spring cannot rise higher than its source.” The transferee cannot have better rights than transferor.

Reserva Troncal merely determines the group of relatives to whom the reservable property should be returned. Within that group, since Art. 891 does not specify, the individual right to the property should be decided by the applicable rules of ordinary 80

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH The transferee is also subject to the condition imposed upon the transferor which is to reserve the property in favor of the reservista.

This is why the prayer was made in the alternative – to bind whoever gets the property from the reservista.

If the reservista dies but there are reservatarios who survived her what happens to the ownership rd acquired by the 3 person? rd The ownership of the 3 person is transferred to the reservatarios

SIENES VS ESPARCIA This is a case of double sale. One made by the reservista (Andrea Gutang) and the other made by the reservatarios (Cipriana and Paulina Yaeso) Only one of these sales can be given effect but both are valid but conditional.

Is there a qualification in view of the nature of the property involved?

The condition refers to one and the same event, only the effect would be different.

Why did the reservatarios made an alternative prayer? The prayers was – that the registration be denied entirely OR if granted they should be allowed to annotate the reserve on the title of the property.

One will bring about extinguishment of the right of the transferee of Andrea Gutang. On the other hand it will give rise to the right of the transferee of Cipriana and Paulina.

Generally ownership is transferred upon the delivery. You cannot deliver what you do not have. Otherwise stated you cannot transfer ownership to something you do not own.

The condition is - whether or not there will be reservatarios surviving the reservista at the time of her death. If Yes – transfer Andrea will be extinguished because it is subject to a resolutory condition. The transfer made by Cipriana and Paulina will become effective.

So that if you have already disposed of this in favor of somebody else you cannot dispose of this anew because you have lost the right of ownership even if that other person is acting in good faith.

If No – transfer of Andrea will be “effective” (do not answer that it is valid because the premise is both sales are valid)

This rule is modified, if the property is covered by the Torrens System because under this system a buyer is not obliged to look beyond the title. So that if title is clean without any annotation, burden, transfers, mortgages, lien then it also makes it clean and free.

GONZALES VS CFI In the probate of the holographic will (HW) of Filomena Roces (reservista), Beatriz Gonzales (one of the reservatario, daughter of Filomena) filed motion to exclude from the inventory of her mother’s estate the reservable property because they should be inherited by Filomena Legarda’s (praepositus) brothers and sister and not by the grandchildren of the reservista.

If the reservable nature of the property is not annotated on the title and the same is transferred to rd the 3 person, he is not bound by the reservable nature of the property. The right of the reservatarios and purpose of the reserva will be defeated because that person can invoke the clean title in his favor. He can say that he has no knowledge, actual or constructive, about the existence of the reserva.

SC held that the reservista could not convey in her HW to her grandchildren the reservable properties because the same didn’t form part of her estate. Reservista cannot make a disposition mortis cause of the reservable properties as there are reservatarios existing. The latter don’t inherit from the reservista but from the praepositus. Hence upon reservista’s death, the reservatorios nearest in degree to the

Hence the resolutory condition attaching to the property will not apply to him.

81

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What about by testatamentary succession? He cannot also inherit by testamentary succession.

praepositus become automatically and by operation of law the owner of the reservable property. CANO VS DIRECTOR The sons of the reservista wanted to have a judicial proceeding akin to settlement of intestate estate to established that in fact the property in nature. Is this proceeding required? No, because there was already a registration on title about the reservable nature of the property so there is no doubt about this reservable character; and even if there is no such annotation you do not need such proceeding because they do not inherit from the reservista, they inherit from the praepositus. Being the reservatarios of the praepositus they acquire the property automatically by operation of law.

Liken (compare) the compulsory heir to an employee, then liken the legitime to basic wage the minimum standard required by law. If you are not willing to give his employee his minimum wage we can conclude that you do not want to give the employee anything bonuses or increase in his minimum wage. If the testator does not want to give the CH the minimum required by law, what more the additives or increases represented by testamentary succession. Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified.

What are the requirements for a valid disinheritance? • made in a will/codicil • based on a cause that is legal, expressly stated in the will, certain and true • total • unconditional

If there is conflict among the reservatarios and such cannot be settled among themselves then it is necessary to go to court and make a declaration of their rights. But it is only with regard to their right as against one another. No longer the issue of the rights of the reservatario with regards to rest of the world or the heirs of the reservista is no longer in issue.

Why is it required that disinheritance be made in a will or codicil? Disinheritance is a disposition in favor of those who shall inherit in the absence of CH. In terms of effectivity, it is a kind of disposition mortis causa (upon death) which according to law should comply with the forms and solemnities affecting last will and testament. This is also true with regards to donations mortis causa basically made as a form of a will.

DISINHERITANCE Article 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law.

Compulsory heir may be deprived of his legitime only through a valid disinheritance.

It should “expressly” mention the cause – it cannot be done by implication. Testator is limited to the grounds stated under the law. He cannot go outside of these grounds.

If a compulsory heir (CH) is disinherited what right remains in him with respect to the estate of the testator? Disinheritance is done at the end of the lifetime of the testator. He must have made several dispositions already. He may have made legacies or devises in favor of the Compulsory heir. He might also have instituted the compulsory heir as one of his heirs or universal heir. He may have revoked all his prior will so that there is no will governing his estate in which case there is intestacy. If we follow the provision in the law which says that disinheritance deprives the compulsory heir of his legitime, does it mean that if disinheritance is made its effect shall be limited to a denial of the compulsory heirs right to his legitime? No. He is also denied a share in the free portion. He cannot also inherit by intestate succession.

Why did the law limit the grounds for a disinheritance may be made? If the testator is given the discretion to determine the grounds for disinheritance this will defeat the purpose of the legitime. Because the testator can deny the CH of his legitime for any ground at all. Compulsory succession is compulsory upon the testator, not upon the CH. Compulsory succession, will no longer be compulsory anymore. It will be totally dependent upon his discretion because he can remove the legitime from his CH. Should the cause be specified in details? No, as long it is legal, certain and true. 82

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH In defective disinheritance - it is presumed voluntary, because it is clear what the intention of the testator is only that he failed to comply with requirements of the law relating to the cause.

Legal – based on the grounds provided by law True and Certain – must exist in reality and it is provable otherwise the heirs disinheritance is ineffective.

In preterition, the effect is to annul the institution of heirs. Which annulment can give rise to intestate succession except if there are devises and legacies which will be given effect and allow testamentary succession to the extent that are no impairment of the legitime.

Example: “I disinherit may daughter B because she tried to kill me.” The details on how, when and where shall be supplied by the evidence in case the disinherited heir contest the grounds. If the testator narrates the details of the transgression of the disinherited heir, will this invalidate the will? No.

In defective disinheritance there is annulment of the institution only to the extent that the defectively disinherited heir may be prejudice.

Total – all or nothing. Example: The testator cannot say, “I will deny you ½ of your legitime.” The feelings of the testator cannot be severed

Under preterition what can the preterited heir recover? Preterited heir stands to gain more than his legitime because he can even claim the free portion if intestate succession were allowed to step in - If you do not have any valid devices and legacies OR if there are such they not cover the entire free portion. In the end he gets his legitime plus share as intestate heir

Unconditional – Because this is in effect imposing a condition upon the legitime. Testator is allowed to disinherit by virtue of this provision in the, in effect you are allowed to burden the legitime. But to impose additional condition is no allowed. This is because the right to the legitime is basically inviolable. It is only by way of exception that there is this provision of disinheritance.

How about in defective disinheritance? Disinherited heir only gets his legitime because the institution of heirs remains valid to the extent that there is no prejudice to the legitime of the CH. ____ legacies and devises. Simply stated the disinherited heir is only entitled to the completion of his legitime.

Article 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.

What is defective inheritance? If the Testator: • does not specify the cause • Specified a cause but the truth of which is not proved if contradicted • Specified a cause not one provided by law

What is the effect of defective disinheritance on the prior testamentary disposition made in favor of the defectively disinherited compulsory heir and also with regard to his right to succeed in the intestate succession? 2 Views: 1) Dr. Tolentino – the defectively disinherited heir is entitled to given all that he is entitled to receive as if disinheritance had not been made, w/o prejudice to lawful dispositions made by the testator in favor of others. 2) Justice Caguioa – the rule on disinheritance were only meant to govern the right or power of the testator w/ regard legitime so that if he can effectively deny the legitime because of defect in the way the disinheritance was effected then what should be affected should only be the right of the CH to the legitime.

What happen if the will in which the disinheritance is made is null and void will that be an instance of defective disinheritance? No. No disinheritance at all. A last will and testament is a requirement for a valid disinheritance. In defective disinheritance there is compliance with the requirements except for these 3 which relates to the cause for disinheritance. Is this the same as preterition? In preterition there is an implied omission which the law presumes to be involuntary. 83

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH •

In other words failure to disinherit should only restore the defectively disinherited heir to his right to the legitime. All others he is deemed to have no right anymore. It is clear what the intention of the testator is – he does not want the CH to get anything from him and the only reason he has to disinherit is because that is the only way for him to do so. But as regard to testamentary dispositions he is not burdened by the same strict requirements.

Accusation of a crime which law prescribes imprisonment for 6 years, IF such is found to be groundless Are we concerned with the grounds of acquittal? Yes. When the law says the accusation was found groundless this means that the acquittal should be based of the finding of the court that the testator did not commit the crime at all. This is different from acquittal due to reasonable doubt because in this case the court still has doubts not just whether or not you did not commit but also whether you committed. It is possible that you committed the crime but the burden of proof was not met.

Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction.

•

Convicted of adultery or concubinage with spouse of the testator Who could be the co-accused? Spouse of the testator. Is possible that the spouse is related to the child? Yes Who is this other person that the child could be having an adulterous affair with? Ideally the intention of the law is to govern an illicit relationship between the step parent and the child of the testator, BUT the law is broad enough to cover illicit relationship which are incest in nature.

GROUNDS FOR DISINHERITANCE CHILDREN/DESCENDANTS (legitimate/illegitimate) • Found guilty of an attempt against the life or testator, his/her spouse ascendants/descendants Law specified “attempt against the life” is this limited to crimes in attempted stage? The law does not reward him if he succeeds the testator the right to disinherit him.

•

If it is argued, “Don’t just attempt, ensure that he/she is killed so that there will be no ground for disiheritance,” is this a correct argument? No. The inclusion of frustrated and consummated stages is justified by the provisions of the law that in case of doubt it is presumed that the law making body intend for right and justice to prevail.

Cause testator to make/change a will thru fraud violence, intimidation or undue influence Is it required that the will or changes will be made favorable to the child? No. Fraud violence, intimidation or undue influence – follow the definition given in Obligations and contracts

•

If the crime committed against the “testator” and it is consummated will this ground be applicable? No. It is impossible for a dead person to make will.

Refusal without unjustifiable cause to give support to the testator There should be concurrence between capacity of the child/ascendant to give support and need of the testator of support otherwise there is no ground for disinheritance.

84

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH

•

•

• Maltreatment by word or deed

Abandonment of Children; inducing daughters to live corrupt/immoral life; attempt against virtue of daughters

What is maltreatment? It is not required that the physical injuries are caused. There is intention to hurt the testator but the effort was not enough to inflict physical injuries upon him

Actually the law is even gender specific, the law mentions daughters however the word “daughters” includes sons or male children. Why should we include male children? Because at the time that the civil code was enacted male prostitutes are basically unheard of and an attempt against the virtue of children are usually directed against females, unlike today

Leading dishonorable or disgraceful life It should be based on the objective standard as defined by the prevailing norms of the society.

•

Conviction of a crime which carries with it penalty of civil interdiction

***

What crimes are these? Crimes which carries penalty of reclusion temporal and up.

Abandonment includes not merely the exposure of the child or descendants to danger but also the failure to give it due care or attention

Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate:

“Attempt against virtue” – conviction not required because the child may not choose to make public her ordeal and may just “seek justice” by disinheriting the guilty parent or ascendants

(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;

(transcriber’s notes)

***

(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

•

Loss of parental authority *** (transcriber’s notes)

(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false;

Loss of Parental authority is a ground for disinheritance only if there is fault on the part of the heir

(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;

*** (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

•

Attempt by one parent against life of the other Would there be any ground to extinguish the right to disinherit? When will this ground be not available? Yes, in case of reconciliation between the parents

(6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause;

Why would that prevent disinheritance if the reconciliation is only between the parents? Basically the child suffers collateral damage, he is not the aggrieved party, and the aggrieved party is the other spouse. If this aggrieved party can find it in his heart to forgive the aggressor more so the testator.

(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

GROUNDS FOR DISINHERITANCE PARENTS/ASCENDANTS (legitimate/illegitimate) Note: Some grounds are basically the same but there are some grounds that is peculiar to parents or ascendants 85

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 921. The following shall be sufficient causes for disinheriting a spouse:

Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made.

(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants;

What will be the effect of reconciliation between the testator and the heir to be disinherited? • It deprives the testator of the right to disinherit if the disinheritance is not made yet. The reconciliation will prevent the testator from using this ground for disinheritance. • It renders ineffectual any disinheritance already made

(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation;

When the law speaks of reconciliation, what does it envision? How would we characterize reconciliation as an act? Bilateral, it is not enough that the testator forgives; we speak of reconciliation if the forgiveness is accepted. It implies admission of guilt

(5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse.

Article 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime.

GROUNDS FOR DISINHERITANCE SPOUSE •

Giving cause for legal separation

If an heir is disinherited, what happens to the shares that should have pertain to him? If the disinherited heir has descendants the share will pertain to his descendants by right of representation

There is no need to bring an action for legal separation what is required is only a cause Family Code. Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

Supposing that the child or descendants happens to be a minor, what right does the father enjoy over the property of the minor child? Will there be a right of usufruct? None, because the law expressly said that there will be no right of usufruct over the property inherited by the representative Independently with this provision of the law, would there be a right of usufruct that the disinherited parent would enjoy? Under the Family code, properties of minor children are intended to be devoted to their support and their education; there is no any longer right of usufruct If the property enjoys fruits or income, it will be devoted primarily to the needs of the children and secondarily to the needs of the family

86

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Legacies and Devises

with their being voluntary heir for purposes of being chargeable with burden of devises and legacy

Article 924. All things and rights which are within the commerce of man be bequeathed or devised.

Can devises and legacies be also burdened? Yes, because just like the heirs, they also received under the will of the testator and since they received from the will of the testator then the testator can also exercise his discretion and burden the legacies or devises with whatever he wants because of his testamentary privilege.

What things can be a subject of a legacy devise? Any property within the commerce of man What do we mean by within the commerce of man? Anything that can be a subject of appropriation Legacies – gifts of personal properties that are respectively given by virtue of a will

Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety.

Devises - gifts of real properties that are respectively given by virtue of a will

Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect.

Example of a property within commerce of man Public street – because it is intended for public use Note: the fact that the property is owned by the government does not make it outside the commerce of man because government can also own property in its proprietary capacity in which case it goes down to the level of an ordinary juridical person Illicit objects – because you cannot enter into a valid transaction

Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing.

Is it required that the testator owns the property to given as legacies or devises? No, the testator may dispose of a property which does not belong to him

Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them.

Qualifications: st 1 qualification: the testator thinks/knew that the property belongs to him but in fact it was owned by another General Rule: If the testator thinks/knew that the property belongs to him but in fact it was owned by another – such disposition of legacy or devise is void

Who is charged with the obligation to carry out the devise or legacy? By default it shall be the ESTATE. An estate is a juridical person and it has to act thru an agent who is executor or administrator Why the estate? Because it is the continuation of the personality of the testator

Why? Because mistake cannot be the basis of ownership

Can the testator opt to specify some other person? • Heir chargeable • Legatee or devisee

Exception: If the testator subsequently acquires the property by any title – the disposition will be valid

What kind of heir are we speaking of here? Essentially what the law is saying that only Voluntary Heir can be charged with the burden of a legacy or devise. The voluntary heir can be also a compulsory heir, but that does not matter because we are only concerned

Why? Because the law presumes from the fact that the testator acquired the property that 87

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH perhaps he learned that the property does not belong to him and to give effect to the legacy or devise, he does what it takes to acquire it for him.

In which case how do we treat the bequeath of property belonging to the legatee or devisee? Obviously, it is a property not belonging to the testator but a property belonging to a legatee or devisee. It shall be considered to be a simple variation to the devise or legacy on property belonging to third person but it would appear that in this case there is no qualification as to whether or not there was knowledge on the part of the testator. (It only deals with a variety of the legacy of things belonging to another, or of things which do not belong to the testator, and is already covered by Article 925)

nd

2 qualification: the testator knew that the property do not belong to him and yet he ordered or he gave it by way of legacy or devise – such disposition is valid the law simply does not only require knowledge, the law further require that there should be an express order for the acquisition of the property. What happens if there is no express order for acquisition? How do we treat the legacy or devise? The law did not provide for a rule but if we consider art. 929. Art. 929 says that if the testator only have a part interest in the property bequeathed then only his interest shall be bequeathed with the devisee or legatee but it provides for an exception. The exception is if the testator expressly declares he is giving the entire thing.

Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent.

Would there be any liability upon the person who is charged with the legacy or devise when it comes to damages that the devise or legacy may suffer? Yes What is the basis of the liability attached? The fact of possession give rise to liability, the estate will be liable or the heir charged will be liable because they are in possession of the property. In fact if there is more than one heir in possession both are considered to be solidarily liable even if any one of them will be at fault or negligence.

In this case (in the question given) there is no express order to acquire and yet the law recognizes the validity of the legacy or devise and it accept as sufficient the implied order to acquire. Perhaps by analogy we can also accept the situation where there is no express order for acquisition but there is knowledge of non-ownership would be simply, an implied order of acquisition may be sufficient. After the all the guiding rule is “it is always to give effect to testamentary intent”

The only way in which the liability will be excused is on account of fortuitous event. But if there is any participation or whatsoever in the damage caused to the devise of legacy, then the estate or the heir/heirs in possession will be liable.

Since acquisition is a consensual agreement, we cannot really force the purchase if the seller does not want to sell or if he otherwise ask for a higher price, in which case what will be the remedy? The heir or executor or administrator shall be obliged to deliver the just value of the property

***

(transcriber’s notes)

Thing is lost when it perishes, goes out of commerce or disappeared in such a way that the existence is unknown or in such a way that it cannot be recovered

Can the testator also give by way of legacy or devise property belonging to the legatee or devisee who is charged which is burdened by the legacy or devise? Yes

The solidary liability of heirs also covers cases of fraud and delay Presumption: loss was due to the fault of the possessor unless there is a contrary proof and without prejudice to the provision of Art. 1165

In that case that legatee or devisee is burdened with shall be known as a? Sub-legatee or sub devisee

***

Earlier, like an heir, a devisee or legatee may also be charged with a legacy or devisee and the only qualification is that the value of the devise or legacy should not exceed the free portion that the devisee or legatee received. 88

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Would they also be accountable for any warranty? Yes, warranty against eviction (Obligation to deliver is not lost)

Supposing that he does not choose to free the property from the encumbrance, what happens? If the creditor comes knocking to his doors to collect, will he be liable? He will not be personally liable but he cannot stop the creditor from going after the encumbered property.

When would there be a warranty against eviction? Eviction can only take place by virtue of a judicial order

Should the burden or encumbrance, however, have for their purpose not to secure the payment of nay demandable debt, then they will pass to the legatee and devisee. Hence, the rights of usufruct, easements and other encumbrances will have to be assumed by the devisee or legatee

Why would there be a warranty against eviction? Because the intention is to provide a some kind of check to the authority given to the person charge and the person providing for this check is to ensure that there would be no abuse on the part of the person charged.

Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator.

How can there be abuse? Abuse can take place in the exercise of the choice

In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one.

Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears.

In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death.

The same rule applies when the thing is pledged or mortgaged after the execution of the will. Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee.

Can rights be the subject of a legacy or devise? Yes

Is it required that the property given is unencumbered? No, even an encumbered property may be given

This is best exemplified by LEGACY OF CREDIT or LEGACY OF REMISSION OF DEBT or LEGACY OF SECURITY.

In such a case, it is the estate that is obliged to pay the debt or free the property from encumbrance. In all cases? The qualification or condition is something to do with the encumbrance or security is intended to secure a recoverable debt, it is further required that the encumbrance be constituted as of the time before the execution of the will.

Legacy of Credit What is being given here is the right of the testator to collect from his debtors How is this satisfied? The legatee has the right of action to go against the debtors of the testator or the estate or the heirs may choose to bring the action against the debtors and simply turn over the proceeds to the legatee

When do we apply the rule that the property must be free from the encumbrance? Apply it if the security is given to guaranty a recoverable debt and secondly it is also required that the pledged or mortgaged that security be constituted before the execution of the will.

Here, there is a novation by the subrogation of a new creditor but is effective only as regards that part of credit existing at the time of the death of the testator

Supposing that these conditions are not present or at least one of them is not present, what happens to the legacy or devise? No, the legacy or devise will have to take the property encumbered and all. He will take the property that is subject to the encumbrance. If the legatee or devisee wants to free the property from the encumbrance he is free to do so but upon his own account

Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge.

The legacy of credit is extinguished if the testator before his death chooses to bring an action to recover the debt.

89

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality.

Supposing the testator makes an extrajudicial demand, will it extinguish the legacy? No, because the law specifies that the legacy will be extinguish only if the testator should bring an action, that means judicial demand. If it is an extrajudicial demand it will have no effect in the legacy. If it is a judicial demand meaning to say a judicial action then the legacy is extinguished notwithstanding the fact that the payment may have been made in after the death of the testator

Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a) Article 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable.

Article 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones.

Is it possible to give something by way of legacy or devise if and yet that designate that thing by its kind? Yes

Legacy of Remission of Debt It is a condonation. The testator in condoning the debt that is owed to him. We need to make a distinction between general and specific condonation.

And that would be valid? Example: “I would like to give Ms. Domingo a dog” Yes

If it is general then it is only limited to all debts existing at the time of the execution of the will. Those contracted after the making of the will and existing at the time of testator’s death are not covered

A generic personal property or generic legacy is valid but a generic real property or generic devise is to be valid there must be immovable property of its kind in the estate other wise the devise will be null and void. How else will the generic or specific character of the property affects the devise or legacy? It affects with regard to the acquisition of ownership and the rights to the fruits earned by the property

If it is specific then it refers to the debt existing at the time of the testator’s death Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares.

If the legacy or devise is SPECIFIC, acquisition of ownership will take place upon the testator’s death provided that the disposition is pure and without any condition; if it is subject to a condition after the fulfillment of the condition.

In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise.

Legacy of Security According to the law if the testator should give by way of legacy the thing that was pledge to him and the legatee has to be the pledgor himself, the effect of that legacy is to extinguish the pledge that has been constituted in favor of the testator.

If the legacy or devise is GENERIC, acquisition of ownership will take place upon the selection by the estate or by the heir charged. If the legacy or devise is SPECIFIC, the rights of the fruits will be pass upon the death of the testator, but with respect to growing fruits or unborn young of the animals, those would have been gathered already will no longer be covered.

But what will be the effect in the principal obligation? Nothing, the principal obligation continues to subsist The law specifies pledges, can we also include mortgages and other securities? Yes, because just like a pledge, antichresis, mortgage are also rights; an intangible property that may be a subject of a legacy or devise

If the legacy or devise is GENERIC, the rights of the fruits at the death of the testator will only attached if the testator so provides.

Article 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate.

Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged.

A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. 90

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs.

Need and capacity must concur

Once made, the choice is irrevocable.

It may last a lifetime but if the testator is incapable of giving support (and it was justified), it may cease

In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator.

How much? Testator may fix the amount of legacy based upon his will Amount fixed shall be respected as long as the legitime of the compulsory heirs are not affected

Alternative Legacy or Devise Testator has bequeathed one of two or more properties which he designated. There is only one legacy but there are 2 or more choices

Possible reduction if the capacity of the testator decreases If the testator not fixed the amount General Rule: • Considerations fixing the amount of support: • Social Standing of legatee or legatees • The necessities of legatee or legatees • Value of the estate – the entire residue of the hereditary estate after payments of all debts and obligations

Selection will depend upon the estate or heir charged with the obligation to deliver In Obligations: Alternative Obligations If the heir dies before making a choice? The right shall pass upon the heir’s representative. Once the choice is voluntarily made, it is irrevocable

Exception Testator during his lifetime has habitually given a certain sum of money to the legatee or other things by way of support, amount shall be deemed bequeathed

If it is the executor or administrator who died? Right is not transferred to the heirs but rather to the successor in office. Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently.

Exception to the exception Amount is substantially disproportionate to the value of the estate

A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.

In which case, what must be done? Must be reduced

If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate.

Article 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a)

If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate.

What is legacy of education? A sub specie of legacy of support

Periodical pension or a certain annual, monthly or weekly amount is bequeathed Legatee may petition the court for the first installment upon the death of the testator and for the following ones which shall be due at the beginning of each period

Period of Legacy for Education • Until legatee becomes of legal age • If he is studying and seeks to finish a course, legacy may go beyond the age of majority Condition: Legatee pursues his studies diligently

Such payment shall not be returned (even though the legatee should die before the expiration of the period which has commenced)

Legacy of Support A legatee is given certain amount until such need for support exists 91

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished.

When to apply 950? When the “conflict” only exist among devises and legacies, no compulsory heirs and no donations, but the assets are insufficient

Legacy or devise subject to a usufruct Legatee or devisee is bound to respect such right until it is legally extinguished

What is the hierarchy? (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata.

Article 950 vs Article 911 Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will;

Remuneratory legacies or devises Remuneratory legacies reward services rendered to the testator or his family, services which are invaluable but which do not give rise to a demandable debt.

(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

How would we distinguish it from salary? Remuneratory legacies are an act of liberality for the past services rendered not obligatory

(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose

Article 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had;

As between donation intervivos and legacies and devises, donation is given preference

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

As among legacies and devises themselves they shall be treated pro-rata except should the testator should declare any devise or legacy to be preferred In article 950, there is a hierarchy Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) (2) (3) (4) (5)

(6)

(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928.

Remuneratory legacies or devises; Legacies or devises declared by the testator to be preferential; Legacies for support; Legacies for education; Legacies or devises of a specific, determinate thing which forms a part of the estate; All others pro rata.

Instances of extinguishment of Legacies or devises • Transformation of the thing bequeathed as to form or denomination Example: farmland to fish pond • Alienation by any title Any form of disposition

When to apply 911? We apply 911 when there are donations, compulsory heirs and legacies and devises and the assets are not sufficient

92

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Would there be any qualification of this rule, what if it turns out that the disposition was null and void? After disposing of the thing by way of legacy or devise the thing is again reacquired by the testator. It does not matter if he reacquires the thing because if he brings an action to recover on the ground of nullity of transaction, the legacy or devise is still considered extinguished. However, should the acquisition is be on account of a right to repurchase then legacy or devise is valid.

that he has changed his mind about the legacy or devise because his consent was vitiated. General Rule: The nullity of the contract and the recovery of the testator on that ground will not restore the legacy or devise to validity Exception: if the nullity or the defect of the contract proceeds from vitiation of consent then we must say that the legacy or devise should be restored to validity because the basis of our premise to rely that there was a change of intention is no longer apply because of the vitiation of consent.

In other words, we should consider the legacy or devise as revoked if the testator should dispose of the thing be given by way of legacy or devise. What if after disposing he acquired the property again, do we say that the legacy or devise is restored to validity? What if he recovers the thing because the transaction or the disposition itself is null and void? The legacy or devise shall not be restored to validity. If we make a legacy or devise and then thereafter disposed of the thing that have been given by way of legacy or devise, the legacy or devise is considered revoked.

If there is a right to repurchase, the legacy or devise would be effective. The mere fact that the testator has reserve upon himself the right to repurchase shows that he did not really intend to completely dispose of the property, hence we cannot say that he had change his mind regarding the legacy or devise. The right of repurchase is not automatic, it must be stipulated. If there is a right of repurchase attached to the disposition, it shows that the testator want to preserve the legacy or devise.

The law takes it that by alienating or disposing, the testator had change his mind regarding the legacy or devise, but what happened the transaction that was entered into may be null and void, and the necessary consequence of that would be the thing that have been disposed of will be returned to the testator. Once the testator reacquires it because of the nullity if the transaction, notwithstanding the nullity of transaction the legacy or devise remains revoked because the intention to revoke has already been expressed, it has been made known. Although the disposition was not effective but that does not deter from the fact that the testator has changed his mind.

We always go back to the intention of the testator •

If the thing is totally lost Is it possible for a generic property to be lost? No, genus never perishes “without the heir's fault” – material qualification If the heirs are liable, can we say that there is extinguishment of the legacy or devise? None, because the law provides that the legatee or devisee will be reimburse by the value of the legacy or devise by virtue of the liability imposed upon the heirs who is at fault or who is negligent

Is there possible that there can be an exception to this rule that the legacy remains revoked? What could possibly be a situation or disposition although there was no intention to dispose? Such situation may arise if there is a vitiation of consent on the part of the testator. If he did not really want to dispose of the property but there was force or fraud so the disposition takes place, but we cannot take that disposition as an indication

However, if the lost is without fault or negligence of the heir, what happens to the legacy or devise? The legacy or devise is considered extinguished 93

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n)

If the testator wants to prevent his intestate heirs from inheriting, what should he do? o Dispose all of his properties o Make a valid will disposing the entire estate

Article 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree.

Supposing that the testator does not want to alienate all of his properties but among his 6 siblings he does not want his two particular siblings to inherit, can he, in the alternative, just provide in his will that he is expressly exclude his to siblings? Yes

LEGAL OR INTESTATE SUCCESSION Article 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;

What is the basis? The order of succession provided for by law is based on the presumed intent of the decedent. The law presumes that had this person is able to make a will then this would be his beneficiary. We have presumed intent on one hand as embodied on what the law provides and on the other hand we have on the will express intent. The express intent is that the testator does not want his 2 particular siblings to inherit. Express intent will always governed the only exception is as to legitime of the compulsory heirs.

(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code

In this case the express exclusion will be given effect because it is the express intent of the testator.

When can Intestate Succession takes place? • A person dies without a will • A person dies with a void will • A person dies with a will which has subsequently lost its validity • If the testator did not name an heir to the entire estate in which case there would be an intestate succession with regard to the portion to whom no heirs is named • If the testator did not dispose of the entire estate, in which case there would be an intestate succession with regard to the portion not have been disposed of by the will • Suspensive condition attached to the institution of heir does not happen • Predecease Except: o Substitution o Right of accretion • Repudiation Except: o Substitution o Right of accretion • Heirs instituted are incapacitated to succeed Except: o Substitution o Right of accretion

Remember disinheritance is only applicable to compulsory heir and sibling (brothers and sisters) are not compulsory heirs Who are considered to be intestate heirs? o Compulsory Heirs o Collateral relatives o Brothers and sisters o Nephews and nieces th o Other collateral relatives within the 5 degree o State In the collateral relatives, there is some kind of leveling because brothers and sisters, nephews and nieces they are take ahead of all collateral blood relatives and the other th collateral relatives are limited to those within the 5 degree of consanguinity. In the absence of all relatives, then we will have the state Rules in Intestate Succession (that is the same with compulsory succession) o Rule of Exclusion o Parents being excluded by the children and descendants 94

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Legitimate parents are excluded by all kinds of children (legitimate or illegitimate) Rule on Concurrence o The spouse can concur with the parents o The spouse can concur with the children o

o

If grandchildren are the nearest relatives then all the heirs will be grandchildren, no one further in degree will be inheriting with them Exception: • Right of representation • Rule of preference of lines (the rule on proximity must yield to the rule of preference of lines)

In intestate succession, we always have compulsory succession. We need to make sure that when we apply the sharing provided by law there should be no impairment of the legitime. If there will be impairment, we must first satisfy the legitime

By virtue of right of representation, it is possible for a grandchild who is farther in degree will inherit alongside children who are nearer in degree

Rules in Intestate Succession o Rule of Proximity o Rule of Equal division

How many degrees are the grandparents from the children? 2 degrees

Rule of Proximity General Rule: Relatives nearest in degree excludes the more distant one Exception: Right of Representation

What about brothers and sisters? 2 degrees If we will base on proximity, we can say that the grandparents and brothers and sister are the 2 nearest relatives, but will they be inheriting along side one another? No, this is another instance that we do not apply the rule on proximity. A brother is as near as grandparents because they are both second degree blood relatives. If we would apply the rule on proximity, we should allow both of them to inherit simultaneously. However, the rule on proximity must yield to the rule of preference of lines.

Grand Parent

Parents

Sisters

Decedent

Uncles

Brothers

Aunts

Cousins Cousins What is this rule on preference of lines? The direct line is preferred over the collateral line

Nieces

Children

Nephews

In our given situation, we have a brother who is a collateral relative, and we have a grand parent who is an ascending relative (in the direct line). We prefer the ascendant because he is a relative in the direct line over a brother who is a relative in the collateral line even though they are both second degree relatives.

Grand Children Grand Children are excluded by the presence of Children Grand Parent are excluded by the presence of Parents Cousins are excluded by the presence of Brothers and Sisters Nephews and Nieces are excluded by the presence of Brothers and Sisters

But the preference does not stop there, because in the direct line itself, we also have preference. Let say, grandchild and grandparent. A grandchild is a second degree relative. Who shall inherit? The grandchild because the descending line is preferred over the ascending line

The effect of rule of proximity is the heirs that will be inheriting will all belong to the same class or belong to the same level.

Rule of equal Division If you are inheriting and u are in the same class, then u should be inheriting equally

So, if children are the nearest relatives then all the heirs will be children, no one further in degree will be inheriting with them 95

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Exception #2 Paternal Grand Father Paternal Grand Mother Maternal Grand Mother Maternal Grand Father

Example: Brothers and sisters, they are inheriting together. The rule is that they should be inheriting equally. But supposing along side is the spouse of the decedent, should we take it that the 3 of them will be inheriting the same share? No, because the spouse is in a totally different class, aside from being an intestate heir, she is also a compulsory heir

¼

½ of the estate

PGF PGM MGM MGF

¼

PGF Let say, brothers and sisters, but one is named as a voluntary heir to the free portion, can we still insist that the sister that is only an intestate heir would be receiving equally? No, because they are not of the same class. One is an intestate heir and the other is both intestate and voluntary heir

-

PGM

MGM

MGF

Mother

Father

½ of the estate

Is there an exception to the rule of equal division? 1. In the descending line, when the heirs are not of the same or kind, that is some are legitimate and others are illegitimate 2. In the ascending line, the rule of division by line, that is, the grandparents or other ascendants divide the property per line: ½ to the paternal line and ½ to the maternal line 3. In the collateral line, that is, the rule of the whole blood and half blood relationship, where those of the whole blood get double that the half blood 4. The division in representation where division per stirpes, that is, the representative divide only to the share pertaining to the person represented.

Decedent In the ascending line, we divide the estate by line, so that even if we have 2 sets of grand parents (maternal and paternal), but on one side let’s say in the maternal side we only have maternal grand mother and on the paternal side we have both set of grand parents. In short, the decedent was survived by 3 grandparents. We do not divide the estate among them equally, we divide first the estate by line, so divided by 2 first, so that one side will get ½ and the other side will get the other half. Since we have 2 grandparents in the paternal side, each of them will be getting ¼ each. And since we have one parent in the maternal side, she’ll be getting the entire ½ of the estate. So the sharing will be ¼ ; ¼ ; ½, not equal because the sharing is divided by line.

Exception # 3 If the brother is of full blood and the sister is of half-blood, then the sharing will not be the same although both are siblings. The brother will get twice as much as the sister. Do we have the same rule in testamentary succession? No, because in testamentary succession regardless of full blood or half blood siblings will have an equal share.

Exception # 4 The representative will be inheriting per stirpes, but they are inheriting in the same manner as representatives. They are also the same degree relatives of the decedent. But will they be inheriting equally? Following the rule that if u belong in the same class, u inherit along side with another u are to inherit equally. will they be inheriting equally? No, because their sharing will have to be determined by right of representation that they are exercising. Decedent

B

A

X

Y

U

V

C

W

Let say, A and B predecease the decedent, that means, we will be moving up X, Y, U, V and W to the level of children by right of representation. Will X, Y, U, V and W be inheriting in equal portion as F? No, because F will be inheriting per capita 96

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Right of Representation

We divide the estate by the number of children

Right of Representation always in the Direct line in the descending line, never in the ascending. In right of representation, the representative inherits from whom the person represented would have inherited. A -1/3

C- 1/3

Grandparents

Parents B-1/3 Decedent

X and Y will inherit the 1/3 portion belonging to A by right of representation = 1/6 each

Child

U, V and W will inherit the 1/3 portion belonging to B by right of representation = 1/9 each

Grand child

In our illustration, X, Y, U V and W is actually inheriting from the decedent and this facts has consequences. What will be the consequences? Y- 1/6

Grandparents

C-1/3 X-1/6

Parents W-1/9

U-1/9

Decedent (D)

V-1/9 A repudiates his inheritance from D

Child (A) Obviously, U, V and W will be getting less than X and Y even though they are inheriting one class of heirs (they are all representatives of children (A and B) who have predeceased the testator

Grand child (B)

B repudiates his inheritance from A

If B can represent A and inherit from D even though B had repudiated his inheritance from A.

Right of representation is found in Compulsory Succession and Intestate Succession

But if A has repudiated his inheritance from D, B cannot represent A because of the repudiation. What will happen? If there is no right of accretion, then the grand child will be inheriting in his own right

Right of Accretion is found in Voluntary Succession and Intestate Succession

97

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Decedent (D) A repudiates his inheritance from D

Grand Parent A

B

C Parents

Uncles

Aunts

E We said earlier, A repudiates his inheritance from D, so E cannot represent A. what happens to the legitime of A? When it comes to the legitime, B and C will get the portion suppose to be pertaining to A in their own right because the law says when it comes to compulsory succession (legitime), there is no right of accretion. (parang wla lng c A, inde sya kasama sa kwentahan ng legitime)

Sisters (S)

Decedent

Brothers (B) Cousins Cousins

Nieces

Children

Nephews

Grand Children But in addition to compulsory succession, B and C will also be inheriting by intestate succession. In intestate succession we have now accretion. B and C, in intestate succession, will be receiving the portion that should have gone to A by right of accretion.

In our illustration, we have B the brother of the decedent and we have S the sister of the decedent, how is right of representation? The nephews and nieces must concur with brothers and sisters in the situation. So, if the brother should die or otherwise incapacitated, then B’s son (nephew of the decedent) will be inheriting along side S. S in her own right and the nephew by right of representation. Of course, this will not happen if we have people in the direct line because of the preference of the direct line over the collateral line.

The results would be the same because the law provides that the heirs by right of accretion will be receiving in the same proportion as in the inheritance and since equal din lng nmn si B and C, ganun din ang mangyayari, hahatiin lng din nila yung portion ni A. Another consequence of the fact that E is actually receiving from A is that it does not matter if A dies ahead of the decedent.

Grand Parent

In intestate succession, right of representation takes place when there is predecease and incapacity, while in Compulsory succession, right of representation takes place when there is predecease, incapacity and disinheritance

Parents

Do we have right of representation in repudiation? None, because when an heir repudiates it is as though the heir do not exist anymore in so far as the estate of the decedent is concerned. So when the heir repudiates, he cannot be represented. Are we limited to the direct line when it comes to right of representation? No, there is right of representation in the collateral line but only up to the nephews and nieces

Uncles

Aunts

Sisters (S)

Decedent

Brothers (B) Cousins Cousins

Nieces

Children

Nephews

Grand Children Supposing both siblings (bros and sis) are dead ahead of the testator, can there be a right of representation? Both nieces and nephews will be inheriting in their own right, meaning per capita 98

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH •

Right of Accretion When do we have a right of Accretion? What are the instances? It applies whenever there is renunciation, predecease and incapacity. Renunciation, predecease and incapacity are also grounds for substitution. How do we distinguish Right of Accretion from Substitution? Right of accretion takes place in both Testate and Intestate Succession. Substitution takes place in testamentary succession. When do we consider substitution as a factor when u want to apply right of accretion? Only in testamentary succession How do we consider the rights in substitution as a factor? How will it affect the right of accretion? (hanging question) Right of accretion A right by virtue of which, when 2 or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees or colegatees It is an accrual of share of an heir who predecease, incapacitated or repudiated the inheritance to co-heir in prodiviso Co-ownership exist between heirs because their respective shares was not yet distributed It is applicable only in cases of testate and intestate succession It is not applicable to compulsory succession because compulsory heirs inherits by their own right In intestate Succession, right of accretion is subordinate to right of representation in cases of predecease and incapacity Requisites of right of accretion • That 2 or more persons be called to the same inheritance or to the same portion thereof, proindiviso

99

That one of the persons thus called die before the testator or renounces the inheritance or be incapacitated

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH WILLS19

Compare this with the situation where we say that there would be accrual, in which case, how much will be the legitime of A, B and C, it will be 1/6 and then it will just accrue the 1/6 pertaining to C between A and B, in which case that 1/6 that will spread between them does not pertain to them in their own right, accretion un. (No accretion in Compulsory Succession, sinabi lng ni Mam toh for comparison, wag malilito, wag stupid)

When do we have right of accretion? We have this in testamentary succession and intestate succession Do we have this in compulsory succession? None, because if there is predeceased, incapacity or disinheritance among the compulsory heirs with regard to the legitime, it will go to the representative if there is right of representation.

When there is right of Accretion in Intestate succession? • Repudiation • Predecease • Incapacity • Unworthiness

Supposing there is no right of representation? Then it shall pertain to the other compulsory heirs of the same class in their own right

So when any of these grounds appear, what happen to the share that is pertained to the vacated share in intestate succession? Just like in Compulsory Succession, if there is right of representation, in which case it goes down to the representative.

What is the significance of this fact or consequence? The only significance would be in determining the legitime if there are legitimate children or the surviving spouse. How does it happens? (panu mangyayari yan?) Illustration:

What happens if there is no right of representation? Then we apply accretion, it will accrue to the other heirs. But remember, the heirs should be of the same class

Spouse

Decedent

A

B

In intestate Succession, right of accretion takes place as a matter of force, it is automatic, if we have more than one heir of the same class, accretion will naturally take place in the absence of right of representation.

C

Supposing we have 3 legitimate children (A, B and C), then we have a surviving spouse.

What is created in Intestate Succession among the heirs? Co-ownership

The share of the surviving spouse is equivalent to the share of 1 legitimate child. Supposing that C dies, or is incapacitated or disinherited, what happens to his share? It will now pertain to A and B

What is the nature of co-ownership? Everyone becomes a pro-indiviso owner, there is no specific ownership over a specific property. Ownership over the whole but ownership with jointly with others.

But will it accrue to them (A and B)? No, it will pertain to them in their own right (parang wala si C), in which case, we shall divide it ½, which means ¼ each (A and B), “lalabas na ¼ ang kanilang share, because ½ of the ½ of the estate. Which means the surviving spouse will be getting how much? ¼ as well

Do we also have right of Accretion in Testate Succession? Yes Does it follow in testamentary Succession that co-ownership is created just like in Intestate Succession? No, because the testator has the power to provide for specific ownership for each and every heir. Pwede syang magbigay ng devise, ng legacy, and when he does that he confers specific ownership. Alam mo na from the outset, what you own as against the entirety of the estate. That is why in testamentary succession we have conditions that must be complied with before we can say that there is Accretion.

A, 1/4 SS, 1/4 B, 1/4 FP

100

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What are those conditions? Art. 1016

We prescribe to the rule primarily of Justice Caguioa and Senator Tolentino, because we are trying to approximate the situation for accretion to apply in basing in Intestate Succession.

Article 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary:

In intestate succession the rule is equality. We said that if the heirs belong to the same class then the rule is that they shall be inheriting in equal shares. So ganun din dapat sa testamentary Succession, for us to say that accretion to take place then the heirs should also be inheriting in equal shares. Kasi in intestate succession pag lhat kayo kapatid wla naming makakakuha ng ¼. 1/3 o 1/6, automatic nman yan pag tatlo kayo tig-wa1/3 kayo subject to the exception of full-blood and half-blood, but as a general rule you will all be Inheriting equally.

(1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it.

As we put it very simply it means plurality of subjects over unity of objects What does that mean? We have more than one co-owner over one property, it may be the entire estate or may be a portion of the estate.

So if the principle as we follow that is inherent in Intestate succession, then logic dictates that the circumstances should also be the same for Testamentary Succession. Dapat equal din yung share.

We can say that the bottom line is resulting to co-ownership. If the testamentary disposition is such that if it is a coownership among several heirs, then it is possible for accretion to take place.

Siguro, alternative na lng ung kay professor Balane, which is based on the literal interpretation of law What can defeat right of accretion in Testamentary Succession? Do we have right of representation? None

When do we say that there is pro-indiviso co-ownership? According to the law, it does not matter even if the disposition provides that the heir should be receiving in equal shares or the heirs should be taking the property 50-50, because the effect is still co-ownership.

What can defeat right of accretion in Testamentary Succession? Substitution, if there is substitution we do not have accretion. In the absence of substitution the substitution will take place

There is a controversy however in the designation itself, because if we would go by the provision of the law, it would seem to limit the application of accretion to (hanging statement)

When does accretion do not apply in money or fungible goods? If the money or fungible goods, the portion of the money or fungible goods have already been earmarked

The law says, ok lang yan kahit may designation of shares, basta co-ownership pa din ang magiging resulta. And yet all the given examples pertain to equal sharing

What does earmarked means? It means it was physically segregated

What happens if the sharing is no longer equal? What if the designation of shares says “1/4 sayo, 1/3 sa kanya, 1/6 sa kanya” but it pertains to one property or the entire estate. In that case there is still no specific designation of ownership.

Example: • Money, it was taken from the whole amount, it was put in the envelope and marked as “to be given to Juan” • Fungible goods, it was taken from the lot, it was put in the sack and marked as “to be given to Pedro”

According to Senator Tolentino kelangan daw equal sharing, equality and that view was also shares by Justice Caguioa. But according to Professor Balane, the provision says “or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property” (art. 1017)

101

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Things to Remember about right of Representation • We have right of representation in the direct line but only in the descending line • We have right of representation in the collateral line but only with respect to nephews and nieces who survive together with brothers and sisters of the decedent • Illegitimate children can be represented by both their legitimate and illegitimate children • Legitimate children cannot be represented by their illegitimate children because of Iron Curtain Rule (art. 992)

Order of Intestate Succession

IRON CURTAIN RULE

Who excludes who, let’s go to the latter part of the enumeration

Gabby

Sharon

Compulsory Succession and Intestate Succession are practically the same, in fact the first 5 people in the enumeration of Intestate heirs are also the Compulsory Heirs. Necessarily the rules of exclusion that we apply, rules of concurrence in compulsory succession, we also apply in intestate succession Basically the sharing would be ½, ½ The only we should look out for is the impairment of legitime

Francis We have the collateral relatives, who are the collateral relatives? th Up to the 5 degree

KC

Frankie

Miel Do we have any preferences among these collaterals up to the fifth degree? The preference between brothers and sisters; and nephews and nieces as against the other collaterals

KC is an illegitimate Child of Sharon Can KC inherit from his sisters (Frankie and Miel)? (intestate) She cannot, because of Art. 992

Brothers and sister; nephews and nieces are placed in a higher level, then the rest of the collaterals up to the fifth degree

Can her sisters inherit from KC? (intestate) They cannot, because of Art. 992

What will be the significance of this rule? It creates an exception to the rule of proximity

Let’s compare the right of representation given to grandchildren and other descendants and the right of representation given to nephews and nieces

How so? Nephews and nieces exclude uncles and aunts. We have a hierarchy in the enumeration, the law says “brother and sister; nephews and nieces AND IN THEIR ABSENCE the other collateral relatives up to the fifth degree. That means nephews and nieces exclude uncles and aunts, this significant because nephews and nieces and uncles and aunts are of the same degree. Nephews and nieces is 3 degrees away from the decedent as well as uncles and aunt are also 3 degrees away from the decedent, and yet in intestate succession, nephews and nieces is preferred over uncles and aunts

Is any difference? Nephews and nieces can only inherit by right of representation when they survive with another brother or sister of the decedent If they alone survive (nephews and nieces) what happens? They inherit in their own right What about grandchildren and other descendants? They always inherit by right of representation

Suppose that we don’t have brothers and sisters and nephews and nieces, who will now come in? The rest of the collaterals

How will that affect their (grandchildren and other descendants) their successional right? Would there be any difference? Yes, because when we inherit by right of representation the shares is per stirpes

Would there be any important rule to observe in determining who among these collaterals shall inherit? We adhered to the rule of proximity 102

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH th

Share of the Legitimate Children, ½ of the estate.

What if your great great grandparent (4 degrees) survives st with your 1 cousins (who is the child of the decedent’s uncle: th th 4 degree relative)? So we have 4 degree great great th st grandparent VS 4 degree 1 cousin, who shall inherit? th When it comes to collateral relatives up to the 5 degree, we NO LONGER observe the preferences of lines and we do not observe the rule of Full blood and half blood relationship. The only rule we observe is the rule of proximity. So both will be inheriting

½ divided by 3 (legitimate Children)

Share of the illegitimate Children Satisfy first the legitime of the spouse, reduction of the share of illegitimate children, then divide it by 10 (illegitimate children)

COMPUTATION # 1: ?

Decedent

1 2 3 4 5 6 7 8 9 10

Spouse

A

B

C

3 legitimate Children A – 1/6 B – 1/6 C – 1/6

COMPUTATION #2 Decedent

Spouse

Surviving Spouse – 1/6 10 illegitimate children 1 – 1/30 2 – 1/30 3 – 1/30 4 – 1/30 5 – 1/30 6 – 1/30 7 – 1/30 8 – 1/30 9 – 1/30 10 – 1/30

Y

X

1

Z

2

3 4 5 6

X – Predecease Y – Disinherited Z – Disinherited SS – ¼ Y–¼ Z–¼

In this case there would be impairment of legitime. So, we satisfy Compulsory Succession first, and then if there is any left over then we apply the 2:1 (legitimate : illegitimate) proportion, if any.

A, 1/6

SS, 1/6

In this case, there is a share that is vacated in the compulsory succession, it is vacated because of the predecease of X who is a compulsory heir. Since X predeceased the decedent and there are no decendants from X, we do not have right of representation. And since this is also a legitime then there would be no right of accretion as well.

1, 1/30

What will happen is that Y and Z will be succeeding to the vacated share in their own right.

2, 1/30 3, 1/30

B, 1/6

4, 1/30

So we will be ignoring X as though he never existed So that Y and Z, their legitime would be ¼ each (1/4 of the estate)

5, 1/30 C, 1/6

10, 1/30

6, 1/30 7, 1/30 9, 1/30

8, 1/30 103

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH This will make the legitime of the surviving spouse also ¼ of the estate

What happens if instead of being disinherited, instead of dying ahead, instead of being incapacitated, but children A and B had repudiated the inheritance? If there is repudiation there can be no representation because when there is repudiation the effect is that the person who repudiated is deemed to be non-existent. How do the grandchildren inherit in lieu of the provision of the law? Then the grandchildren will inherit in their own right. So that will be an exception to the rule that grandchildren and other descendants will always be succeeding by right of representation.

Let us compare the successional right of the children and nephews and nieces

Successional Right of the Nephews and Nieces

Sister

Decedent

Brother

1 2 3 4 5

6

7

8

Sister and Brother predeceased the decedent, how much will each of them share in the inheritance? 1/8 each, because they will be succeeding per capita, by their own right For as long as the nephews and nieces survives alone, they will be succeeding per capita, if they survives with a brother or a sister, they will be succeeding per stirpes by right of representation

Decedent (grand mother)

Son

1 Successional Right of Grandchildren

1

2

B

3

Niece

3

Let us say, the grand mother was survive by the illegitimate children of his legitimate son and by her niece, who shall inherit? Illegitimate grandchildren VS collateral relative (niece)? Can the Grandchildren exclude the niece? The niece, this is the classic application of the IRON CURTAIN RULE. Illegitimate children cannot inherit from the legitimate children and legitimate relatives of their relatives

Decedent

A

2

Sister

4 5 6 7 8 TEOTICO VS DEL VAL Relationship established by ADOPTION is limited solely to the adopter and the adopted and does not extend to the relatives of the adopting parents or of the adopted child except only as provided for by law. The adopted is an heir of the adopter but not of the relatives of the adopter.

Are they succeeding in their own right? Are they succeeding per capita? No, because grandchildren and descendants wil always inherit by right of representation per stirpes, even they are the only one inheriting as descendants (Kahit sila lng ang survivors) What happened here is we divide the estate by the number of children first. ½ to A and ½ to B.

Sharing in the Intestate Succession Article 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.

Both parents have predeceased the decedent, how much will the sharing be? 1, 2 and 3 will be receiving 1/6 4, 5, 6, 7 and 8 will be receiving 1/10

Legitimate Children (LC) Alone – whole estate Article 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by article 895.

LC and IC – whole estate Each IC gets ½ the share of 1LC (take into account of impairment of legitime as seen in computation #1) 104

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

IC alone –whole estate divided equally

LC and SS – whole estate SS counted as 1LC

Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.

Article 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child.

IC and SS SS – ½ of the estate IC – ½ of the estate

LC, SS and IC SS – same as share of 1 LC IC – each gets ½ share of 1 LC

Article 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be his legal heirs. Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001.

Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.

LP alone – whole estate divided equally

SS alone –whole estate Article 987. In default of the father and mother, the ascendants nearest in degree shall inherit.

Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.

Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita.

SS and legitimate bros and sis, nephews and nieces SS – ½ of the estate Legitimate Bros and Sis, Nephews and Nieces – ½ of the estate Nephews and Nieces – right of representation

LA alone (other than parents) – whole estate Rule of division by line Article 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

LP and IC LP – ½ of the estate IC – ½ of the estate

Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half.

Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

SS and illegitimate Bros and Sis, nephews and nieces SS – ½ of the estate Illegitimate Bros and Sis, Nephews and Nieces – ½ of the estate Nephews and Nieces – right of representation

LP and SS LP – ½ of the estate SS – ½ of the estate Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have onefourth of the estate, and the illegitimate children the other fourth.

Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike.

LP, SS and IC LP – ½ of the estate SS – ¼ of the estate IC – ¼ of the estate

Illegitimate Parents Alone – whole estate Excluded by the presence of children of any kind

105

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. Article 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

Article 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession. ( Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41.

Legitimate Bros and Sis Alone – whole estate Full blood and half blood - 2:1 Article 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. Article 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood.

What are the Basic requirements?

Legitimate Bros and Sis, nephews and nieces – whole estate Full blood and half blood - 2:1 Nephews and Nieces – right of representation

Kelangan lng may pulso ung mag mamana The person who will inherit should be alive at the time of the death of the decedent This is true also for children who are already conceive

Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. Article 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood.

When should the capacity to inherit exists? As a general rule, it is enough at the time of death. Except, if the inheritance will be subject to a suspensive condition, then it is crucial that the capacity to inherit both at the time of death and at the time of fulfillment of the condition

Nephews and Nieces alone – whole estate, per capita Full blood and half blood - 2:1

There is no exception created when it comes to representation, notwithstanding the tenor of the law. In other words, even if the heir is inheriting by right of representation, the heir is still required to have capacity to inherit at the time of death of the person who are inheriting from not the person who are represented.

Article 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

Other collaterals –whole estate Per capita Rule of proximity

Important provisions of law: Art. 1027, which provides 6 grounds for incapacity Article 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit.

Article 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate.

State – whole estate Rules in computing for Intestate Succession 1. Satisfy the legitime of the compulsory heirs first 2. Apply the rules in intestate succession in available free portion If the legitime is not impaired, apply the sharing in intestate succession. Otherwise, follow the rules above

CAPACITY TO SUCCEED

The first five grounds pertain to testamentary Succession 106

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH there would be no cause for disinheriting anymore. But in what form does the law require the reconciliation to be in disinheritance, the law does not require any form but it is required to be bilateral

Art. 1028, makes the provisions of Art. 739 applicable to testamentary Succession Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. Article 739. The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

When it comes to unworthiness, the law requires that the condonation should be in writing The problem would be, if the testator disinherits the heir for a ground that is also a ground for incapacity because of unworthiness.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

Example: the testator disinherited an heir because of an attempt against his life, that is both a cause for disinheritance and a ground for unworthiness. What happens if after that he reconciles? The ground for disinheritance will disappear, but what about the ground for unworthiness considering that the law requires written condonation and there is none in the situation given, we only have is reconciliation? So it is possible that he heir would be incapable of succeeding by will, compulsory succession and intestate succession. So what must be done, how do we exclude a person who is incapacitated to succeed? The court will make an order of exclusion. One of the interested party must raise this an a issue with the court, otherwise, no exclusion will be done.

Art. 1032, applies to all kinds of Succession. The grounds are around 5 of which constitute for disinheritance Article 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent.

What happens if the heir who is unworthy is already in possession of the property and disposes it? Who has the better right, the other heir or the third person who dealt with the excluded heir? rd We observe the same rule of good faith. If the 3 person is in good faith and the disposition is done before there is a judicial order of exclusion, then the rd right of the 3 person will be respected. The other heir will have recourse for damages against the excluded heir. What will comprise the damage in this case? • The value of the thing which was disposed of • Accessions and accessories • Return the fruits that he received and the fruits that he would have receive

The thing about the grounds in art. 1032 is that if any of these grounds are present, then this will make it true totally render the heir incapable of succeeding by will, compulsory succession and intestate succession. The effect of unworthiness is encompassing.

Prescriptive period? 5 years from the time the disqualified heir has taken possession

How do we restore an unworthy heir to capacity? • If the testator executes a will after he learns of the grounds of unworthiness, then the heir is considered to be restored in capacity • Execute a written condonation

ACCEPTANCE AND REPUDIATION

Let us say that there is reconciliation required in disinheritance, in disinheritance, if the parties reconcile then 107

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Article 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free.

“If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs” the renunciation is gratuitous but only for the benefit of one or more heirs but not all, but if it is gratuitous and if in favor of everyone and would have the same effect of accretion then that would be a different case.

Inheritance is a free and voluntary act, following this principle, there is a requirement of acceptance or repudiation. Article 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent.

How do an heir repudiate? Through a public and authentic instrument or by filing a petition before the court

Article 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance

If the heir is a testamentary heir and at the same time an intestate heir, and the heir repudiates the intestate portion of the inheritance, how would that affect the testamentary disposition in his favor? It will be taken as a repudiation of the testamentary disposition as well

When do an heir suppose to accept or repudiate, within 30 days from the court issues an order of distribution. If the heir did not do anything, then the heir is deemed to have accepted the inheritance

However if the heir repudiates the intestate inheritance without knowledge that he had been made a testamentary heir, then the repudiation will not extend to the testamentary disposition

Effect of acceptance and repudiation retroacts from the time of death of he decedent, that is why if the heir accepts, them the heirs is deemed to be in possession of the property from the time of death, even though someone else is in possession.

What happens if the heir repudiated and then he changes his mind? Can it be taken back? No, the heir cannot take it back, once the heir accepted or repudiated that is irrevocable except if it is shown that there is vitiation on consent

In the same way, even if the heir was in possession but he repudiates, then the heir is deemed to have never in possession of the property Would there be any form required by law? Yes, the law prescribes a form of acceptance and repudiation. Acceptance can be express and tacit

COLLATION Who are suppose to collate? Is it true that only compulsory heirs are suppose to collate? No, everyone is suppose to collate. Compulsory heirs and strangers alike

How do an heir expressly accepts? In a public or private document How do an heir tacitly accepts? Doing any act which can only be done as an heir or owner of the property

Who are the strangers in collation? Anyone who is not a compulsory heir. A stranger can also be a testamentary heir or an intestate heir.

There would be an implied acceptance under article 1050

Is there any difference if the person collating is a stranger or a compulsory heir? Yes, it has to be determine at the first instance, to what portion do we charged or impute the donation.

Article 1050. An inheritance is deemed accepted: (1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs; (3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted.

If it is a compulsory heir, we impute it to his legitime If it is a Stranger, we impute it to the free portion

Would there be an instance that we impute a donation of a compulsory heir to the free portion and not to his legitime? Yes,

The 3 instances are acts of ownership 108

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH o

o

it happens if the testator so provide that there be no collation against such compulsory heir, in which case we impute it to the free portion Or If the donation exceeds his legitime, in which case excess of the donation to the free portion.

•

compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition.

•

Would there be any transfers from the decedent which will not be subject of collation? Yes

• •

Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired.

• •

Exception:
testator so provides otherwise or
when the legitime is impaired

Article 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation.

•

Article 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee.

Refers to civilly demandable debt

PARTITION

Article 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children.

Article 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)

Article 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated.

Article 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value.

Exception:
if given jointly, child obliged to bring collation ½ of the thing donated

Why partition necessary? The result of succession is coownership. What does partition do? It provides for the separation, division and assignment of the held in common among those to whom it may belong

Article 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. Article 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom.

o

Exception: if the testator so provides otherwise unless legitime is impared

•

o

Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.

o

Article 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property.

o

No collation in the following cases:

o

Exception:
exceeds 1/10 of sum disposed by will

Collation required in the following cases: • Article 1061. Every compulsory heir, who succeeds with other

But what if the property grew in value? It does not matter because upon knowledge by the donor of the acceptance, there was already a perfected donation and there was also a transfer of ownership, so any benefit as well as damage would have to be for the account of the donee

•

if the parents so provide It impairs the legitime

Article 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will.

o

What do we bring back, do we bring back the property itself which was donated? No, only the value at the time that the donation was made

•





Do an heir become an owner of the property once it is partitioned? No, because the heir has been a co-owner The basis of partition is co-ownership

Exception: 109

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Recently in CHAVEZ vs IAC, were it appear that even without a will a partition that is effected inter vivos by the decedent would be upheld as valid. This is a jurisprudence of recent vintage, meaning it was promulgated under the New Civil Code. (abandoned) But in the case of more recent promulgation of RODRIGUEZ VS RODRIGUEZ (2007), it pertains to a partition effected in accordance with a will that was executed in 1984. The SC said that “u cannot effect a partition inter vivos in the absence of a last will and testament that has been submitted to probate.

Let say the co-heir decides to share the entire property or the entire inheritance without knowledge of the other co-heirs, what is the right of action? Is it an action for recovery of ownership? No, an action for partition Why not action for recovery of ownership? Because the unconsented co-heir does not lose his ownership of his portion despite the sale, because a co-onwer/co-heir does not have any right over the unconsented co-owner/co-heir’s portion.

Any heir can ask for partition at any time. Unless the testator himself imposes a prohibition against partition

rd

What right does the 3 person acquires? He merely stepped into the shoes of the coowner/co-heir who sold his share, in which case he is a co-owner

A prohibition for partition would even affect the legitime

A co-owner cannot bring an action against a co-owner over a thing owned in common

If before partition, the co-heir should decide to sell his rd portion to a 3 person, then the other co-heirs has the right to purchase the property. Some kind of a first refusal

Theoretically speaking all of the co-owners is entitled in the possession or enjoyment of the property

And when this is suppose to be exercised? Within 30 days from written notice

Important provision in partition is article 1080

If there is no written notice the 30 day period will not be deemed begun.

Article 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash.

“Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.” What does this provision means? It means that even during his lifetime, the decedent can already effect a partition of his property among his heirs Is it the same as a donation? No, because in that case the ownership is effected at the death of decedent, still mortis causa. Yun nga lang the partition is effected during the decedent’s lifetime The controversy lies if the decedent can effect partition without a last will and testament. Jurisprudence has been consistent in holding that there should be a last will and testament

110